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[ { "docid": "22750967", "title": "", "text": "an administrative agency.”) Second, those findings that the IJ actually made “are conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(a)(4)(B). The Supreme Court has stated that evidence that would compel a contrary conclusion indicates a lack of substantial evidence in support of an IJ’s findings. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38. Where a factual determination rests on a credibility finding, the court “afford[s] particular deference in applying the substantial evidence standard.” Zhang-INS, 386 F.3d at 73 (internal quotation marks omitted). However, “the fact that the [IJ] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire, 357 F.3d at 178. In fact, “using an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error,” Secaida-Rosales, 331 F.3d at 307, and we review de novo whether such a standard has been used. Third, in order to merit substantial evidence deference, “[t]he [IJ] must give specific, cogent reasons for rejecting the petitioner’s testimony,” and an adverse credibility determination may not be based upon speculation or upon an incorrect analysis of the testimony. Ramsameachire, 357 F.3d at 178; see also Secaida-Rosales, 331 F.3d at 307. Further, the IJ’s reasons “must bear a legitimate nexus to the finding.” Secaida-Rosales, 331 F.3d at 307. “[W]hen a credibility determination analyzing testimony is based on flawed reasoning, it will not satisfy the substantial evidence standard.” Id. Fourth, the IJ must consider all the evidence in the record that has probative value. See Qiu, 329 F.3d at 149 (holding that each portion of the evidence tending to support an aspect of a claim must be considered unless it is “too insignificant to merit discussion”). Fifth, the IJ can dismiss an applicant’s testimony as too vague to satisfy his burden only if it does not “identify facts corresponding to each of the elements of one of the refugee categories of the immigration statutes.” Id. at 151 (internal quotation marks omitted). If an applicant satisfies this burden, but his testimony" } ]

[ { "docid": "22383467", "title": "", "text": "the IJ’s findings with respect to asylum and withholding of removal, but not the denial of CAT relief. The BIA adopted and affirmed the IJ’s decision. II. Jurisdiction We previously explained that “[ajliens admitted under [the Visa Waiver] program forfeit any right to challenge their removal, except that they may apply for asylum. Therefore, participants who do apply for asylum are processed in ‘asylum-only’ proceedings. Unless granted relief in those proceedings, the Visa Waiver applicant can be removed without further proceedings.” Kanacevic v. INS, 448 F.3d 129, 133 (2d Cir.2006) (internal citations omitted). In Kanacevic, we held that although the deni al of relief in “asylum-only” proceedings does not result in an actual removal order, it is the functional equivalent of a removal order, and we therefore have jurisdiction over Beskovic’s appeal under 8 U.S.C. § 1252(a)(1). Id. at 134-35. III. Standard of Review Where, as here, the BIA fully adopts the IJ’s decision, we review that decision. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the agency’s factual findings under the substantial evidence standard, overturning them only if a reasonable adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Legal questions, and the application of law to fact, are reviewed de novo. See Secaida-Rosales, 331 F.3d at 307. When the BIA or IJ has failed to apply the law correctly, “we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 337 (2d Cir.2006); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). IV. Analysis A. Legal Standard The IJ determined that Beskovic’s arrests and physical abuse did not rise to the level of persecution. In reaching that conclusion, the IJ did not identify the legal standard on which he relied in assessing whether the treatment Beskovic experienced at the hands of Serbian police constituted persecution. We addressed the issue of what type of conduct constitutes persecution in Tian-Yong Chen v." }, { "docid": "22710209", "title": "", "text": "8 C.F.R. § 1208.13(b)(1)). See also 8 C.F.R. § 1208.16(b)(l)(iii) (providing, in the context of withholding of removal claims, that “[i]f the applicant’s fear of future threat to life or freedom is unrelated to the past persecution, the applicant bears the burden of establishing that it is more likely than not that he or she would suffer such harm”). The BIA reasoned that unlike female genital mutilation, “family pressures to accede to arranged marriages are not necessarily confined to females.” A-T-, 24 I. & N. Dec. at 304. The BIA then found, without discussing other forms of future persecution that Traore may have feared on account of her particular social group, that Traore’s fear of forced marriage was unrelated to the genital mutilation she suffered in the past, and that Traore had failed to meet her burden of showing that she would be subject to such persecution in the future. Id. Finally, the BIA rejected Traore’s CAT claim, holding that Traore “failed to present evidence that it is more likely than not that she would be tortured if she is returned to Mali.” Id. DISCUSSION 7. Standard of Review We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., according to the standard set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.: If the intent of Congress is clear, that is the" }, { "docid": "22298386", "title": "", "text": "Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. We review the agency’s factual findings under the substantial evidence standard treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). We review de novo questions of law and the application of law to fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). The burden of proving eligibility for asylum rests on the applicant. 8 C.F.R. § 208.13(a). An applicant may qualify for asylum either because he has suffered past persecution or because he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). A fear of persecution may be “well-founded even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This standard is considerably easier to meet than the standard for withholding of removal, which requires the applicant to establish that it is more likely than not that his “life or freedom would be threatened” on account of a protected ground. See 8 C.F.R. § 208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178" }, { "docid": "22383468", "title": "", "text": "the substantial evidence standard, overturning them only if a reasonable adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Legal questions, and the application of law to fact, are reviewed de novo. See Secaida-Rosales, 331 F.3d at 307. When the BIA or IJ has failed to apply the law correctly, “we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 337 (2d Cir.2006); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). IV. Analysis A. Legal Standard The IJ determined that Beskovic’s arrests and physical abuse did not rise to the level of persecution. In reaching that conclusion, the IJ did not identify the legal standard on which he relied in assessing whether the treatment Beskovic experienced at the hands of Serbian police constituted persecution. We addressed the issue of what type of conduct constitutes persecution in Tian-Yong Chen v. INS, 359 F.3d 121 (2d Cir.2004). In Chen, the petitioner testified that he had been arrested and detained on account of his religion, and that while in custody the police officers “used their hands to beat [him].” Id. at 124 (alteration in original). In denying Chen’s application for asylum, the IJ failed to acknowledge his testimony that he had been beaten, and the BIA’s affir-mance incorrectly stated that Chen had not testified to having been beaten. Id. at 127. On appeal to this Court, we noted that, “[b]ecause the BIA’s conclusion was predicated on its mistaken belief that the record contained no evidence of any beating, its analysis cannot be regarded as based on the evidence of record, and we [were] deprived of the ability adequately to review the BIA’s denial of Chen’s applications for asylum and withholding of deportation.” Id. at 129. We granted the petition and remanded, rejecting the government’s contention that the error was inconsequential. Id. at 128. We noted that while “persecution” in the asylum context means that the mistreatment must" }, { "docid": "23108420", "title": "", "text": "returned to Mauritania. In one respect, however, the BIA seemed to go further than the IJ, noting “that the record indicates that the current situation in Mauritania has improved dramatically, lessening the likelihood of persecution.” Accordingly, the Board dismissed Niang’s appeal. This petition for review of the agency’s denial of Niang’s withholding and CAT claims followed. Discussion Where, as here, the BIA adopts the decision of the IJ, and supplements that decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005). 1. Past Persecution A. The Adverse Credibility Finding The petition attacks the IJ’s findings that Niang submitted identity documents that were not genuine, and that he testified untruthfully about them. Finding various errors in the reasoning leading to the IJ’s adverse credibility decision, we vacate and remand that finding. This Court reviews the agency’s factual findings, including its adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey," }, { "docid": "23050372", "title": "", "text": "the IJ’s order without opinion, we review the order of the IJ directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Furthermore, our review is confined to the reasons given by the IJ, and we will not search the record for alternative reasons to affirm the decision of the BIA. Id. We review an IJ’s factual findings under the substantial evidence standard, reversing only if a reasonable fact finder would be compelled to reach a contrary conclusion. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We vacate the IJ’s decision, however, when the IJ’s finding is based on an error of law or when the findings are not supported by evidence in the record. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). The fact that an IJ or the BIA relied solely on an adverse credibility finding in dismissing an application does not insulate the decision from review. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility finding must be based on specific, clear reasons with a legitimate nexus to the finding. Secaida-Rosales, 331 F.3d at 307. Inconsistent testimony can, by itself, support an adverse credibility finding, but not if the inconsistencies are minor, isolated, or peripherally related to the claim. Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000). Adverse credibility findings are improper and may be overturned when they are based on speculation, conjecture, or flawed reasoning. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). Adverse credibility findings may also be overturned when the applicant is not given an opportunity to explain “non-dramatic putative contradictions or incongruities” in his narrative. Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006) A. THE 1993 ASYLUM APPLICATION At the hearing, Pang argued that the statements in his 1993 application for asylum were inaccurate in several respects. The fifth page of the 1993 application includes lines for three signatures. The first line requires the signature of the applicant certifying under penalty of perjury that the information in the application is true. The second line" }, { "docid": "22670036", "title": "", "text": "to apply case-by-case review to Chinese nationals’ claimed fears of future persecution based on the births of two or more children, and we review in turn its conclusion that none of the three petitioners in these cases convincingly demonstrated that their professed fears were well founded. C. The Challenged Conclusions that No Petitioner Demonstrated an Objectively Reasonable Fear of Future Persecution Each petitioner argues that the BIA erred in concluding that he or she had failed to demonstrate an objectively reasonable fear of future forced sterilization if removed to China. To the extent petitioners challenge the Board’s assessment of competing evidence and its ultimate findings of fact, our review is necessarily deferential. “[W]e will not disturb a factual finding if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)); accord Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Indeed, Congress has specified that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, when a petitioner bears the burden of proof, his failure to adduce evidence can itself constitute the “substantial evidence” necessary to support the agency’s challenged decision. See generally Zhou Yun Zhang v. INS, 386 F.3d 66, 78-79 (2d Cir.2004) (holding that adverse credibility determination by itself can “constitute substantial evidence to support the conclusion that [the petitioner] failed to carry his burden of proof on his persecution claim,” in absence of other corroborative evidence), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc). Moreover, when a petitioner challenges “the factual findings underlying the immigration court’s determination that [the petitioner] has failed to satisfy his burden of proof’ on the issue of past persecution or a well-founded fear of future persecution, we will not disturb the BIA’s ruling unless we conclude that “no reasonable fact-finder could have failed" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "12003582", "title": "", "text": "the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo review is required for questions of law and the application of law to undisputed fact. E.g., Secaidcir-Rosales, 331 F.3d at 307. II. Balachova The IJ found that Balachova was not credible. This finding was dispositive of all her claims; yet, Balachova did not point out any errors in the IJ’s adverse credibility finding on her appeal to the BIA. Although issue exhaustion is not jurisdictional, it is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-24 (2d Cir.2007). Thus, we grant the government’s request to dismiss Balachova’s claims for failure to exhaust administrative remedies. III. Krasnoperov A. Credibility The basis of the IJ’s adverse credibility finding for Krasnoperov is very unclear. The only specific factor she cited with reference to credibility was a variance between Krasnoperov’s asylum application and his testimony. While Judge Holmes-Simmons did not identify the inconsistency in her credibility analysis, she had earlier stated that Krasnoperov testified that he had never filed a false report, but that his asylum statement indicated that he had been asked to rob villagers" }, { "docid": "19272759", "title": "", "text": "are not immutable, and there was insufficient evidence that similarly-situated Guatemalans would be identified by would-be persecutors. The IJ also found petitioners’ stories not credible, citing inconsistencies between their airport statements and their testimony at the asylum hearing. In addition, the IJ found that petitioners failed to establish a well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(2), because nothing in the admitted background materials or country reports indicated that wealthy Guatemalans “are specifically targeted for persecution.” Because petitioners failed to demonstrate the requisite well-founded fear, the IJ ruled that they failed to meet the clear probability standard required for withholding of removal under § 241(b)(3) of the INA. Finally, the IJ concluded that their CAT claim was baseless because they had no fear of any actions against them by the government of Guatemala. Accordingly, the IJ ordered petitioners removed to Guatemala. The BIA affirmed without opinion. DISCUSSION I When the BIA affirms without opinion, we review the IJ’s decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ’s factual findings under the substantial evidence standard, which is met “unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004); see also Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We typically afford “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang, 386 F.3d at 73 (internal quotation marks omitted). Our review of a credibility finding is to ensure that it is “based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (explaining that an adverse credibility finding must be based on" }, { "docid": "23108421", "title": "", "text": "to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir.2007) (stressing the importance of witness demeanor as a reason for appellate courts to give deference to a fact-finder’s analysis of testimony); see also Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). The IJ relied solely on his own finding of document fraud to reach the conclusion that Niang was not credible. The IJ acknowledged that he was not an “expert” on forensics, but this alone does not render his decision suspect. Though often helpful, an expert report will not be necessary in every case to support a finding that a document is fraudulent. An IJ is fully entitled to make findings concerning the authenticity of submitted evidence, based on her own examination and her professional analysis. Such findings will ordinarily merit deference. See, e.g., Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006). But we have refused to credit the IJ’s" }, { "docid": "12003581", "title": "", "text": "Krasnoperov had not participated in the rapes, the IJ found him to be a persecutor based on actions that he admitted. The IJ also found that Krasnoperov had not met his burden of proof because he failed to submit certain documents and other documents were not authenticated and/or not in conformance with Russian records. Judge Holmes-Simmons also found the evidence insufficient to support Balachova’s claim and noted that changes had occurred in Russia in the thirteen years since both petitioners left. Finally, she denied the petitioners’ CAT claims because they “failed to establish that it’s more likely than not they’d be subject to torture if returned to their native country.” Both petitioners appealed to the BIA, which summarily affirmed the results of the IJ’s opinion. DISCUSSION 1. Standard of Review Because the BIA summarily affirmed the IJ’s decision, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. E.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo" }, { "docid": "22994127", "title": "", "text": "concerning the three previous instances of detention and mistreatment by the police as a basis for her adverse credibility determination. Based in part on her finding of adverse credibility and in part on her determination that Gjolaj failed to establish past persecution, the IJ denied his application. The BIA affirmed, without opinion. DISCUSSION Where, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision directly. See Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.2006). We review the agency’s factual findings under the substantial evidence standard, reversing only if a reasonable adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review legal questions, and the application of law to fact, de novo. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). When the BIA or IJ has failed to apply the law correctly, “we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 337 (2d Cir.2006). We recently clarified the standard for establishing a claim of past persecution in Beskovic v. Gonzales, 467 F.3d 223, 2006 WL 3013090 (2d Cir. Oct.24, 2006). There we emphasized “that a ‘minor beating’ or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.” Id. at *3 (citing TianYong Chen v. INS, 359 F.3d 121, 128 (2d Cir.2004)); see also Ivanishvili, 433 F.3d at 341. In this case, the IJ appears to have applied a more restrictive standard than the one we identified in Beskovic and Chen. The IJ’s analysis of Gjolaj’s past persecution claim suffers from several other errors, as well. First, the IJ found that none of the three arrests, considered in isolation, constituted past persecution. We have held that “[ijncidents alleged to constitute persecution ... must be considered cumulatively,” and that “[a] series of incidents" }, { "docid": "22643739", "title": "", "text": "was credible, she had not established past persecution or a well-founded fear of future persecution. In a short opinion, the BIA “adopted[ed] and affirm[ed]” the IJ’s decision and added two sentences that agreed with the IJ’s finding that, even if Chen was credible, she had not established a basis for asylum eligibility. Discussion In immigration cases, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s fact-finding under the substantial evidence standard. See, e.g., Cao He Lin v. U.S. DOJ, 428 F.3d 391, 400 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where a denial of relief is based on a finding that a petitioner’s application is not credible, our review is “highly deferential.” Zhou Yi Ni v. U.S. DOJ, 424 F.3d 172, 174 (2d Cir.2005). I. The Decision(s) To Be Reviewed The BIA has employed different techniques in affirming IJ decisions, and the varying techniques affect the scope of our review. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 158 (2d Cir.2004). Similarly, when the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). When the BIA agrees with the IJ’s conclusion that an asylum applicant is not credible and emphasizes particular aspects of the IJ’s decisions, we review both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir. 2005). When the BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong" }, { "docid": "22670037", "title": "", "text": "specified that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, when a petitioner bears the burden of proof, his failure to adduce evidence can itself constitute the “substantial evidence” necessary to support the agency’s challenged decision. See generally Zhou Yun Zhang v. INS, 386 F.3d 66, 78-79 (2d Cir.2004) (holding that adverse credibility determination by itself can “constitute substantial evidence to support the conclusion that [the petitioner] failed to carry his burden of proof on his persecution claim,” in absence of other corroborative evidence), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc). Moreover, when a petitioner challenges “the factual findings underlying the immigration court’s determination that [the petitioner] has failed to satisfy his burden of proof’ on the issue of past persecution or a well-founded fear of future persecution, we will not disturb the BIA’s ruling unless we conclude that “no reasonable fact-finder could have failed to find” in favor of petitioner. Wu Biao Chen v. INS, 344 F.3d at 275 (internal quotation marks omitted). That conclusion is not warranted in any of the three cases at issue. 1. Jian Hui Shao In petitioning this court for review of the BIA’s precedential decision in his case, Jian Hui Shao challenges neither the agency’s response to the statutory interpretation question posed on remand by this court, nor the three-step evidentiary framework identified by the BIA as useful to determining when a claimed fear of future sterilization on removal to China is well founded. Further, petitioner raises no objection to the BIA (as opposed to an IJ) weighing the record evidence or making factual determinations in his case. Instead, the singular focus of Jian Hui Shao’s petition is factual. Petitioner argues that the BIA erred in finding that he failed to demonstrate persuasively that (1) his second child’s birth would be viewed as a violation of family planning regulations in Fujian Province, see Jian Hui Shao Br. at 1, and (2) he “would" }, { "docid": "22461171", "title": "", "text": "his departure, unwitting Indian authorities continued to visit his family’s home in attempts to detain him. After holding a hearing on the merits of Singh’s applications on March 30, 2001, the IJ made an adverse credibility finding against Singh, denied Singh’s applications for asylum and withholding of removal and granted Singh’s application for voluntary departure. On appeal, the BIA summarily affirmed the IJ’s order. “Where, as here, the BIA has affirmed the IJ’s decision without an opinion, we review the IJ’s decision directly under a standard of ‘substantial evidence.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 150 (2d Cir.2006); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We engage in an “ ‘exceedingly narrow’ ” review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), that involves “looking] to see if the IJ has pro vided ‘specific, cogent’ reasons for the adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)). Our “review is designed to ensure merely that ‘credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.’ ” Xiao Ji Chen, 434 F.3d at 157 (quoting Zhou Yun Zhang, 386 F.3d at 74). Although our review of an IJ’s denial of asylum and withholding of removal on credibility grounds is “highly deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005), “an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture.” Xiao Ji Chen, 434 F.3d at 158 (citing Secaida-Rosales, 331 F.3d at 307, 312). When an" }, { "docid": "22434409", "title": "", "text": "for doing so,” and “[tjhose reasons must bear a legitimate nexus to the finding, and must be valid grounds for disregarding an applicant’s testimony.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal citations and quotation marks omitted). We cannot sustain an adverse credibility finding, for instance, that is “based upon ... a misstatement of the facts in the record [or] bald speculation or caprice.” Zhou Yun Zhang, 386 F.3d at 74. Similarly, “when a credibility determination analyzing testimony is based on flawed reasoning, it will not satisfy the substantial evidence standard.” SecaidarRosales, 331 F.3d at 307. Nor do we owe any deference to the IJ’s views on questions of law, ie., “what evidence will suffice to carry any asylum applicant’s burden of proof.” Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 146 n. 2 (2d Cir.2003); see also Ming Shi Xue v. BIA 439 F.3d 111, 114-15 (2d Cir.2006) (holding that it is error for an IJ to deny relief on the basis of perceived inconsistencies that are not dramatic and self-evident and were never raised in the removal proceeding); Jin Shui Qiu, 329 F.3d at 153-54 (holding that it is error for the BIA to make unreasonable demands for corroboration). Yet even as we review agency decisions for error, we recognize that, in the design of the INA, the factual determinations at the heart of many asylum and withholding of removal claims cannot be made by courts, but are committed to the EOIR. See 8 U.S.C. § 1252(b)(4). Accordingly, when we find fault with an adverse credibility finding, we will not substitute our own judgment for the agency’s, but ordinarily will “remand to the agency for additional explanation or investigation.” Twum v. INS, 411 F.3d 54, 61 (2d Cir. 2005) (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005) (“To assume a hypothetical basis for the IJ’s determination, even one based in the record, would usurp her role.”); Jin Shui Qiu, 329 F.3d" }, { "docid": "22675809", "title": "", "text": "claims. The BIA affirmed without opinion. On appeal, the Karajs contend that the IJ (1) applied a standard that was too rigorous when he denied their asylum claim; (2) erred by failing to determine whether Elida had suffered past persecution; and (3) used the wrong standard in evaluating the Karajs’ withholding-of-removal and CAT claims. In addition to defending the IJ’s decision on the merits, respondent contends that the Karajs are barred from raising the standard-of-review issues because they did not raise them before the BIA. DISCUSSION I. Standard of Review We briefly summarize the well-known principles applicable to our review. First, because the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision directly. Zhi Wei Pang v. Bureau of Citizenship and Immigration Services, 448 F.3d 102, 107 (2d Cir.2006). Second, we confine our review to the reasons given by the IJ and will not search the record for alternative reasons to affirm. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Third, where the IJ makes factual findings, including credibility findings, we apply a substantial evidence standard of review. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004); see also 8 U.S.C. § 1252(b)(4)(B). In fact, the IJ’s opportunity to judge demeanor causes us to grant “particular deference” to credibility findings based on demeanor. See Zhou Yun Zhang, 386 F.3d at 73. Finally, where the IJ makes an error of law, we normally will vacate his or her decision. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). II. Asylum “To establish eligibility for asylum, a petitioner must show that ... he has suffered past persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion,’ or that he has a well-founded fear of future persecution on these grounds.” Id. at 148 (quoting 8 U.S.C. § 1101(a)(42)). Proof of past persecution creates a rebut-table presumption of a well-founded fear of future persecution. Id. Further, at least since 1987, it has been clear that an asylum applicant need not show that she “probably” will be persecuted if returned" }, { "docid": "22773846", "title": "", "text": "INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s story is inherently implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). While we have held that a finding of inherent implausibility must be based on more than “bald speculation or caprice,” Zhou Yun Zhang, 386 F.3d at 74, we have also recognized that “the line between reasonable inference-drawing and impermissible speculation is necessarily imprecise,” Guo-Le Huang v. Gonzales, 453 F.3d 142, 147 (2d Cir.2006); accord Ming Xia Chen, 435 F.3d at 145 (acknowledging that there is “no way to apply precise calipers to all [implausibility] findings”). Such imprecision is, perhaps, to be expected when testimony is reviewed by an appellate court without the benefit of witness demeanor. See Zhou Yun Zhang, 386 F.3d at 73 (observing that a “fact-finder who assesses testimony together with witness demeanor is in the best position to discern” credibility). We are not, however, without any principled guidance in reviewing implausibility findings. In Ming Xia Chen, this Court drew a useful analogy to the standard of review set forth in Fed.R.Civ.P. 52(a): In the somewhat similar" }, { "docid": "22246149", "title": "", "text": "v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). For an adverse credibility determination to be upheld, the factfinder must provide “specific, cogent reasons” that “bear a legitimate nexus to the finding,” Surinder Singh v. BIA, 438 F.3d 145, 147 (2d Cir.2006) (per curiam) (internal quotation marks and citation omitted), and that are not based on “flawed reasoning, bald speculation, or conjecture,” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006). II. Diallo’s Inconsistent Statements The IJ found Diallo not to be credible because of “inconsistencies and contradictions” in the statements she made during the asylum application process. Oral Decision at 8. It is well established that inconsistent statements made by the petitioner can constitute substantial evidence supporting an adverse credibility determination. See Zhou Yun Zhang, 386 F.3d at 77-78. Diallo contends, however, that her statements are not actually inconsistent. Pointing to the explanations for the apparent inconsistencies that she gave" } ]

[ { "docid": "12140659", "title": "", "text": "activity, and that such activity affects interstate commerce. The court then looked to whether an enterprise existed, whether the enterprise engaged in a pattern of racketeering activity, and whether that pattern caused Hartz any injury. (1). Enterprise The court ruled that an enterprise could be found, consisting of an association in fact among defendants Jerry Turco, Row-lands, Grimes, and Testa. That enterprise, it could be found, was ongoing, in that it met numerous times in connection with more than one scheme; Turco providing the money, while the Town officials took the necessary action. Moreover, the enterprise had a structure for decisionmaking, as evidenced by the circumstances surrounding the drafting by the Turcos’ attorney of a letter implementing the decision of the Town Council. Finally, the association in fact could be found to be an enterprise “separate and apart from the pattern of activity in which it [allegedly] engage[d],” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), because those associated in it engaged in more than one similar scheme — to wit, the Mimi bribery scheme and the Jeryl bribery scheme. See United States v. Riccobene, 709 F.2d 214, 223-24 (3d Cir.), cert, denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); see also Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir.1987) (stating that “if ... individuals associate together to commit several acts, their relationship gains [the] ongoing nature” required of an association-in-fact). “The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an on-going basis is adequate to satisfy the separate existence requirement.” 709 F.2d at 224. We agree that the enterprise identified by the district court satisfies the enterprise requirement of RICO. Dolores Turco and Mimi assert that they should not be considered to be a part of the enterprise for purposes of RICO civil liability because there is no evidence that either had anything to do with the Jeryl bribery scheme. Although neither is identified by the district court as a component of the enterprise, a trier of fact" } ]

[ { "docid": "11834490", "title": "", "text": "of a legal entity but rather a group of individuals “associated in fact,” then the complaint must contain allegations articulating how those individuals comprised part of an ongoing organization or functioned as a continuing unit. Feinstein, 942 F.2d at 41, fn. 7, citing United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Finally, an “associated in fact” enterprise must have an existence distinct from the pattern of racketeering activity that comes to conduct its affairs in violation of section 1962(c). Turkette, 452 U.S. at 583, 101 S.Ct. 2524; Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir.1989) (fact that officers or employees of a corporation associate to commit predicate acts does not establish an association-in-fact enterprise distinct from the corporation). In the present case, the complaint does not state a cause of action under RICO because it fails entirely to allege the existence of a RICO “enterprise” or to even use the word. Hence, while the facts alleged in the complaint suggest possible candidates that might constitute a RICO enterprise (i.e., the Union, the Bayamón Chapter, the individual defendants, or some association-in-fact of some combination of the foregoing), the court is left to guess at the enterprise or enterprises that are the subject of plaintiffs RICO claim. See Spira v. Nick, 876 F.Supp. 553, 561 (S.D.N.Y.1995). Moreover, it is not clear at this stage which, if any, of the possible candidates might constitute a valid enterprise under RICO. For instance, if the enterprise is to be the Union, then that entity would not constitute a defendant under RICO. See Bessette, 230 F.3d at 448. And if the “enterprise” is held to be an association-in-fact of the individual defendants, it is not clear from the facts alleged whether or not it would have an existence distinct from the Union or from the members’ alleged pattern of racketeering activity. In the end, the complaint fails to allege the essential “enterprise” element of RICO. 3. The complaint fails to properly allege a pattern of racketeering activity. As indicated above, section 1962(c) requires an allegation that the defendant" }, { "docid": "6962927", "title": "", "text": "establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. (Emphasis added). The Court’s statements in Turkette were made as a basis for reversing the circuit court’s holding that a wholly criminal organization could not be a RICO “enterprise”. The Court of Appeals had reasoned, in part, that if a criminal organization could be a RICO enterprise, pleading the underlying “pattern of racketeering” would suffice as to the “enterprise” requirement as well, but, the court reasoned, this could not have been the statute’s purpose. 452 U.S. at 582,101 S.Ct. at 2528. The Supreme Court rejected this reasoning and held that the two requirements — although related — are separate, and that a wholly criminal enterprise can be a RICO enterprise, noting, “Language in a statute is not rendered superfluous merely because in some contexts that language may not be pertinent.” 452 U.S. at 583 n. 5, 101 S.Ct. at 2529 n. 5. Thus, when read in context, it is clear the Turk-ette court intended that the RICO “enterprise” element could be satisfied by pleading the existence of an “ongoing organization”, even if the sole purpose of such enterprise was to conduct criminal activities. In the case at bar, the plaintiff has properly pleaded both an enterprise and acts of racketeering activity. The NTWLP, according to the allegations, is a group of people who have associated together for the purpose of gathering claims against asbestos manufacturers. This purpose is of a continuous nature. In the course of its conduct, various acts of racketeering (e.g., mail and wire fraud) have allegedly been committed by the enterprise. Clearly, however, these “acts” and the “enterprise” are not pleaded as one and the same. Thus, the defendants’ argument that the NTWLP has no separate and distinct structure must be rejected. Defendants next argue" }, { "docid": "1494364", "title": "", "text": "allege the existence of an enterprise. We’ agree. It is an essential element of the RICO cause of action that the “enterprise” be apart from the underlying pattern of racketeering activity. By limiting its allegations of conspiracy to the underlying offenses, [plaintiff] has affirmatively negated the existence of the third Riccobene factor: an enterprise separate and apart from the pattern of activity in which it engages. By its pleading, [plaintiff] has precluded itself from proving at trial that the four defendants together, or any lesser combination, formed an “enterprise.” Unless the district court allows [plaintiff] to amend its complaint, [plaintiff] will be permitted to establish as enterprises only the four entities it specifically identified as such in its complaint. Seville, 742 F.2d at 790, n. 5 (citations omitted). Defendants’ reliance on this portion of the Seville opinion is misplaced for at least two reasons. First, Standard does not attempt, as the plaintiff did in Seville, to argue that it properly pleaded more RICO enterprises than the entities which it identified in its pleading as the RICO enterprise. Furthermore, Standard does not, as did the plaintiff in Seville, “suggest on the face of the complaint that the enterprise is the same thing as the pattern of racketeering activity— which it cannot be under Seville.” Klapper, 657 F.Supp. at 958. For the reasons stated in the foregoing, the Court rejects Defendants’ argument that Standard’s RICO claims should be dismissed on the ground that it failed to satisfy the separate existence requirement. C. Pleading Predicate Acts of Fraud with Specificity Defendants contend that Standard’s RICO counts should be dismissed on the ground that plaintiff failed to plead the underlying predicate acts of mail and wire fraud with sufficient particularity. Under RICO section 1961(1)(B), racketeering activity is defined to include any act indictable either under the mail fraud statute, 18 U.S.C. § 1341 , or under the wire fraud statute, 18 U.S.C. § 1343 . In order to plead an instance of mail or wire fraud, the plaintiff must allege a scheme to defraud in which the defendant “causes” the mails or wires to" }, { "docid": "8185452", "title": "", "text": "plaintiff must show evidence of an ongoing organization, formal or informal, that functions as a continuing unit over time through a hierarchical or consensual decision-making structure.” Id. PSI contends that Plaintiff has failed to plead the existence of an association-in-fact because it has failed to set forth facts that demonstrate the assoeiation-in-fact was either ongoing or functioned for a particular period of time. (Def.’s Mot. Dismiss 19-20). However, Plaintiffs Amended Complaint is clear that Newell’s earthwork was knowingly defective “[f]rom the start,” that PSI’s reports never revealed these deficiencies, and that Newell and PSI further conspired to conceal and cover-up these facts from Plaintiff throughout the course of the Project. Accordingly, PSI’s Motion to Dismiss in this respect is DENIED. iv. An Enterprise Distinct from the Pattern of Activity PSI also argues that the alleged Enterprise is not distinct from the alleged racketeering activities. (Def.’s Mot. Dismiss 18-19). A RICO enterprise must be “an entity separate and apart from the pattern of activity in which it engages.” Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 441 (5th Cir.1987) (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). The Court concludes that Plaintiff has alleged the necessary distinctions. Plaintiff does not allege that the enterprise existed solely for the purpose of executing the allegedly fraudulent predicate acts. Indeed, PSI itself even argues that a purpose of their relationship was to at least partially perform their respective responsibilities under the construction and engineering agreements. (See Def.’s Mot. Dismiss 24). Thus, Plaintiff has alleged the existence of an enterprise distinct from the pattern of racketeering activity in which it engaged, and the Court DENIES Defendants’ Motion to Dismiss Plaintiffs RICO claims on that basis. v. Causation PSI next moves to dismiss Plaintiffs RICO claims on the grounds that Plaintiff has failed to prove that PSI’s RICO activity caused Plaintiffs harm. (Def.’s Mot. Dismiss 20-22). Instead, Defendant argues that Plaintiff has alleged a host of other causes of this harm. (Id. at 21). The Court once again disagrees. In examining a motion to dismiss under" }, { "docid": "7176443", "title": "", "text": "depends on the specific facts of each case, but H.J. Inc. suggests that open-ended continuity may be satisfied where it is shown that the predicates are a regular way of conducting defendant’s ongoing legitimate business or of conducting or participating in an ongoing and legitimate RICO enterprise. Tabas, 47 F.3d at 1295 (internal quotations and citations omitted, emphasis added). Plaintiffs have alleged that conduct attributed to the HTS Defendants and Highline in this case was consistent with “the regular way of operating [of] the Corporate Defendants,” (RICO Case Statement at 15), and the fact that three unrelated franchisee-corporations in three different states allegedly encountered the same fraudulent leasing practices lends support and plausibility to such an allegation. At the motion to dismiss stage, the Court finds that Plaintiffs have met the pleading requirements for an open-ended continuity analysis under RICO. b. RICO Enterprise The Court likewise finds that Plaintiffs’ pleadings allege the existence of a RICO enterprise. “A proper § 1962(c) claim must allege ‘the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.’ ” Med-Quist, 516 F.Supp.2d at 388 (quoting Cedric Kuskner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)). RICO defines the term “enterprise” to “include any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” § 1961(4). Ultimately, in order to prevail on their RICO claim, Plaintiffs will have to prove three Turkette factors in order to establish the existence of a RICO enterprise: In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the Supreme Court stated that an enterprise “is an entity separate and apart from the pattern of activity in which it engages,” and that it is “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” In United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.[1983]), cert." }, { "docid": "9735006", "title": "", "text": "69 L.Ed.2d 246 (1981), that under section 1962(c) a RICO enterprise must be “an entity separate and apart from the pattern of [racketeering] activity in which it engages.” Id. at 583, 101 S.Ct. at 2529. The “pattern of racketeering activity is ... a series of criminal acts,” while an enterprise may be “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. Proof of the enterprise may be established by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit,” while proof of the racketeering activity is established by “evidence of the requisite number of acts of racketeering committed by the participants in the enterprise.” Id. Therefore, although the enterprise must be separate from the activity alleged, the persons involved and the conduct at issue will necessarily overlap. Thus, in Turkette, the Court recognized that while an enterprise must be separate from the illegal activity, proof oí these two elements may “coalesce”, even though “proof of one does not necessarily establish the other.” Id. The district court held that the enterprises alleged in the plaintiffs’ complaint had no “ ‘existence prior to or separate from’ the pattern of racketeering activity” involved. Quoting Allington, 619 F.Supp. at 479. The plaintiffs contend that one of their members, Sunbelt (a corporation which allegedly was manipulated by the defendants in carrying out their fraudulent activity), is a proper RICO enterprise with an existence separate from the alleged racketeering activity. They also contend that the business venture comprised of Sunbelt, the other plaintiffs, and all of the defendants is a proper RICO enterprise. The defendants contend that the plaintiffs cannot include themselves in a RICO enterprise and that both of the alleged enterprises were indistinct from the pattern of racketeering activity. First, the plaintiffs are free to allege that they or one of their members is a RICO enterprise or part of a RICO enterprise. Sun Savings, 825 F.2d at 194-95 & n. 6. RICO section 1962(c) requires proof of “(1) conduct (2) of an enterprise (3)" }, { "docid": "23598096", "title": "", "text": "to dismiss, noting that “[b]ecause Western is alleged to have attempted to benefit from its employees’ activity, it is appropriate to allow the victims of that activity to recover.” 824 F.2d at 1361. Plaintiffs assert that this language requires us to uphold the claims against the corporate defendants here. We do not read Petro-Tech as broadly as plaintiffs suggest. Petro-Tech clearly reaffirmed the holding in Enright that a corporate enterprise, even though it may benefit from its employees’ § 1962(c) violations, cannot be held liable for those violations. The Petro-Tech court clearly did not intend for plaintiffs to circumvent this rule merely by alleging the enterprise as an association-in-fact consisting of the corporation and the individual employees who acted on its behalf. Rather, Petro-Tech, which involved a motion to dismiss, held only that the allegation at issue was permissible under our liberal pleading requirements. It is theoretically possible for a corporation to take a separate “active” role in RICO violations also committed by its employees. The corporation would not be the passive victim of racketeering activity, but the active perpetrator. See also Rose v. Bartle, 871 F.2d 331, 359 (3d Cir.1989) (entity can be “person” with respect to some racketeering acts and “enterprise” with respect to others). We decline at this time to speculate on the precise circumstances that might give rise to such a claim. Moreover, the Petro-Tech court recognized that claims will not always survive a motion to dismiss even when the defendant is facially distinct from the alleged enterprise. Even under the standards of Rule 12(b)(6), we upheld the dismissal of claims against Western when a Western subsidiary was named alternatively as the enterprise. See 824 F.2d at 1358-60 (dismissing vicarious liability claims against Western although Western Petroleum Services named alternatively as enterprise). Without additional allegations, therefore, a subsidiary corporation cannot constitute the enterprise through which a defendant parent corporation conducts racketeering activity. Thus, Petro-Tech recognizes that in limited circumstances claims against a corporate defendant may survive a motion to dismiss even though the enterprise is an association-in-fact including the defendant, but that claims will be dismissed" }, { "docid": "1531078", "title": "", "text": "REI represents in its brief that it “alleged Defendants committed the acts of fraudulent conversion by not returning the software after Defendants improperly copied and used REI’s software.” A review of the pleadings does not support this assertion. REI’s complaint instead demonstrated that its theory of conversion is based on intangible property — the alleged infringing distribution of “an Internet hosted version of [REIj’s licensed VS/REMS/RE/Minder software.” Because the allegations underlying REI’s fraudulent conversion claim involved the defendants’ wrongful distribution of REI’s software, the district court properly held it was preempted. III. Racketeering Influenced and Corrupt Organizations Act (RICO) REI’s third amended complaint alleged that the defendants violated RICO under 18 U.S.C. §§ 1961-68 and described nine predicate offenses. The district court granted REI leave to amend its RICO claims, noting deficiencies in the pleadings. Despite a fourth amendment, the district court dismissed REI’s RICO claims for failure to state a claim. REI contends its allegations sufficiently stated a claim and should not have been dismissed. Regardless of subsection, RICO claims have three common elements: “1) a person who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment, conduct, or control of an enterprise.” Crowe v. Henry, 43 F.3d 198, 204 (5th Cir.1995) (quotation marks and citation omitted). “A plaintiff asserting a RICO claim must allege the existence of an enterprise.” Id. (citation omitted). An enterprise under RICO can include legal entities such as partnerships and corporations, but it also can include “any un ion or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “If the enterprise alleged is an ‘association in fact’ enterprise, the plaintiff must show evidence of an ongoing organization, formal or informal, that functions as a continuing unit over time through a hierarchical or consensual decision-making structure.” Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir.1989) (citation omitted). The district court held that REI failed to plead specific facts to established the existence of an enterprise. We agree. REI’s conclusory allegations did not provide sufficient facts to establish the existence of an enterprise. REI’s" }, { "docid": "18426281", "title": "", "text": "to dismiss, namely, whether Plaintiff’s complaint adequately pleads a violation of RICO. Defendants contend Plaintiff has failed to plead the “enterprise” element of 18 U.S.C. § 1962(c). The section provides, in relevant part: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. An “enterprise” is defined as “any individual, partnership, corporation, association or other legal entity, and any group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). Because Plaintiff does not allege in his complaint the existence of any legal entity formed by Defendants, we must determine whether Plaintiff has pled an “association in fact” of Defendants which satisfies the enterprise requirement. Plaintiff contends that the association of Kroner, Gladstone and Doonan for the purchase and training of race horses, as detailed in his complaint, satisfies the enterprise requirement. In support of his argument, Plaintiff relies upon the Supreme Court’s liberal definition of an enterprise in United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981). The Court in Turkette specified as one type of enterprise “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. The existence of such an enterprise is proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. This proof must go beyond proof of the “pattern of racketeering activity” which also most be proved in order to satisfy RICO. The Turkette Court stated: While the proof used to establish the separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity;” it is an entity separate and apart from the pattern of activity in which it engages. Id. Gladstone argues that Plaintiff fails to" }, { "docid": "21949103", "title": "", "text": "point is Defendants’ claim that Plaintiff failed to properly plead a RICO enterprise distinct from the alleged racketeering acts. In particular, Defendants contend that while Plaintiff may allege an enterprise that is an assoeiation-in-fact, a properly pled RICO enterprise must be comprised of more than just the predicate acts of racketeering. Rather, according to Defendants, a RICO enterprise must be an “ongoing enterprise” whose members “function as a continuing unit.” (Jakks Mem. 27-28 (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981))). This requires Plaintiff to allege the existence of an ongoing organization that has an identifiable hierarchy and organization, and involves conduct that demonstrates that the enterprise’s members work together toward a common purpose. Plaintiff, on the other hand, argues that an enterprise can merely be the sum of the alleged predicate acts, and that no separate, ascertainable structure is required. (WWE Mem. in Opp. to Defs.’ Mot. to Dismiss 19, 22 (“WWE Resp.”)) In its Amended Complaint, Plaintiff contends that there are sufficient allegations to satisfy this minimal burden. Thus, resolution of the dispute on the point of law is dispos-itive, for Plaintiff admits that its Complaint does not allege a RICO enterprise that has an ascertainable structure beyond the purported racketeering acts. (Hr’g Tr. 143-44, Jan. 11, 2006 (“Tr.”)) RICO defines an “enterprise” to include any “individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). According to the Supreme Court, a RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct,” which must be proved “by evidence of an ongoing organization, formal or informal, and by evidence of the various associates functioning as a continuing unit.” Turkette, 452 U.S. at 583, 101 S.Ct. 2524. Moreover, a RICO enterprise “is an entity separate and apart from the pattern of activity in which it engages.” Id. Thus, “[t]he existence of an enterprise at all times remains a separate element which must be proved.” Id." }, { "docid": "1303481", "title": "", "text": "a clear test for the allegation of conspiracy under section 1962(d): To plead a conspiracy adequately, a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose.... Additional elements include agreement to commit predicate acts and knowledge that the acts were part of a pattern of racketeering activity. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166-67 (3d Cir.1989) (citations omitted). The Plaintiffs have met their burden with respect to the elements of a conspiracy by demonstrating, through the Complaint and the extraneous material before the court, the facts discussed above. 2. Enterprise The Plaintiffs have also come forward with factual evidence of a RICO enterprise. RICO defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity and any union or group of individuals associated in fact though not a legal entity.” 18 U.S.C. § 1961(4) (1982). To establish that the Roberts Firm is an enterprise, Plaintiffs must demonstrate: (1) that the enterprise is an ongoing organization with some sort of framework or superstructure for making or carrying out decisions; (2) that the members of the enterprise function as a continuing unit with established duties; and finally (3) that the enterprise must be separate and apart form the pattern of activity in which it engages. Cemar, Inc. v. Nissan Motor Corp., 678 F.Supp. 1091, 1103 (D.Del.1988) (quoting Seville, 742 F.2d at 789-90). An enterprise must exist separately and apart from the RICO defendant. Town of Kearny v. Hudson Meadows Urban Renewal Corp., 829 F.2d 1263, 1266 (3d Cir.1987); Bennett v. United States Trust Co. v. New York, 770 F.2d 308, 315 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); Elysian Fed. Sav., 713 F.Supp. at 757. But cf. Petro-Tech, 824 F.2d at 1360 (enterprise and defendant need not be distinct for purposes of section 1962(a)). It" }, { "docid": "15512120", "title": "", "text": "the existence of an enterprise, the government must demonstrate 1) that the enterprise is an ongoing organization with some sort of framework or superstructure for making or carrying out decisions; 2) that the members of the enterprise function as a continuing unit with established duties; and finally 3) that the enterprise must be separate and apart from the pattern of activity in which it engages. The court below ruled that because Seville failed to plead these three attributes, Count One did not state a cause of action under RICO and must be dismissed. In so ruling, the district court confused what must be pleaded with what must be proved. Ricco-bene and Turkette certainly stand for the proposition that a plaintiff, to recover, must prove that an alleged enterprise possesses the three described attributes. But neither case speaks to what must be pleaded in order to state a cause of action. The district court erred in applying the Riccobene-Turkette proof analysis to the allegations in Seville's complaint.”) (citations omitted). . World. Wrestling Entertainment characterizes the Second Circuit's en banc opinion in United States v. Indelicato, 865 F.2d 1370, 1375 (1989) (en banc), as \"describ[ing] (without a hint of regret) the holding in Mazzei as rejecting the contention that the enterprise and the pattern of racketeering activity must be distinct.” World Wrestling Entertainment, 425 F.Supp.2d at 500. While that is a fair paraphrase of Indelicato’s gloss on Mazzei, it overlooks an important nuance. Indelicato actually said: \"Mazzei contended that no RICO violation had been shown because the alleged enterprise was indistinguishable from the alleged pattern of racketeering activity. We rejected this contention, ruling that the pattern and enterprise need not be totally 'distinct and independent, so long as the proof offered is sufficient to satisfy both elements.' ” 865 F.2d at 1375 (quoting Mazzei, 700 F.2d at 89). Thus, while Indelicato’s language was less precise than might be preferred, it recognized the conceptual distinction between enterprise and pattern of racketeering activity, and correctly characterized Mazzei as holding that the evidence necessary to establish those independent elements may coalesce in cases involving wholly" }, { "docid": "17023662", "title": "", "text": "the Defendants make use of the stolen trade secrets. It should be emphasized that the standard of review under Rule 12(b)(6) requires the court to assume everything in the complaint is true and to view the complaint in the light most favorable to the Plaintiffs. Under this standard, the complaint alleges a series of predicate acts that, if proven, would amount to a pattern of racketeering. This is not to say that Defendants are liable under RICO. Discovery may not support the allegations, or alternatively, Plaintiffs may not be able to convince a jury that Defendants committed the predicate acts and that these acts constituted a pattern of racketeering activity. See Columbia, 58 F.3d at 1111. B. Enterprise Under RICO, a plaintiff must plead the existence of an enterprise. An “enterprise” is “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “To satisfy the enterprise requirement, an association-in-faet must be an ongoing organization, its members must function as a continuing unit, and it must be separate from the pattern of racketeering activity in which it engages.” Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir.1993). The definition of enterprise also incorporates the continuity element. In re Burzynski, 989 F.2d 733, 743 n. 2 (5th Cir.1993). Defendants argue that the complaint fails to allege a continuing enterprise. The same arguments regarding continuity that apply to the pattern of racketeering issue discussed above apply here as well. As explained above, the court finds that the allegations withstand a motion to dismiss because the complaint alleges an association-in-faet consisting of VW, VWOA, the VW Group, and the Lopez Group, whose activities continued at least sixteen months (a closed-ended scheme) or whose activities continue through this day (an open-ended scheme). In addition to continuity, an enterprise must have a structure and goals separate from the predicate acts. Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995). Defendants also argue that Plaintiffs have failed to allege that the enterprise possessed any structure, had any" }, { "docid": "9848884", "title": "", "text": "pattern of racketeering activity.” Id. at 1372. In the instant ease, plaintiff has not alleged the existence of an “ascertainable structure” distinct from the alleged racketeering activity. In fact, defendant Alfieri is only alleged to be an officer and controlling person of defendant Southmost and is not alleged to have any connection with defendant Tri-State. Moreover, plaintiff alleges that defendant Gellman defrauded plaintiff through his misrepresentations made to one of plaintiff’s customers. (Complaint, First Count, ¶¶ 18, 19). There is no allegation that Gellman’s alleged misrepresentation was part of a larger racketeering scheme. For all the above reasons, I find that the First Count of plaintiff’s complaint is deficient since it fails to allege the existence of an “ongoing organization” which is the first element of the RICO “enterprise” requirement. (2) Continuing Unit for Common Purpose Not only does plaintiff fail to allege an ongoing organization, but it also fails to plead the second necessary element of an enterprise under RICO, namely, that “the various associates function as a continuing unit” for a common purpose. United States v. Turkette, supra, 452 U.S. at 583, 101 S.Ct. at 2528. At no point in its complaint does plaintiff allege what “common purpose” characterized defendants’ enterprise. Plaintiff fails to refer to any purpose behind any enterprise, whether that enterprise consists of all four defendants operating collectively or whether each defendant comprises its own enterprise. Nor does plaintiff sufficiently allege the existence of a “continuing unit.” The Third Circuit in United States v. Riccobene, supra, held that the participants in the enterprise occupy continuing positions in the group. The Court explained that each person must perform a role in the group which is consistent with the enterprise’s organizational structure and which furthers the activities of the organization. Id. at 223. The First Count of plaintiff’s complaint is deficient in this respect as well since it neither specifies the positions that existed in each separate enterprise or in the collective enterprise. Nor does plaintiff allege the individual roles that each of the defendants played within the enterprise. Plaintiff merely alleges that from May 1981 to" }, { "docid": "3814324", "title": "", "text": "losses. Class Defendants have moved to dismiss Count One, arguing that Class Plaintiffs: (1) fail to allege a RICO enterprise; (2) fail to adequately plead that AIG engaged in racketeering activity; and (3) fail to allege a sufficiently definite injury. The court will consider each argument in turn. RICO Enterprise Class Plaintiffs allege that CVSCO, SICO, and the AIG Companies (excluding AIG) constituted an assoeiation-in-fact RICO enterprise. Class Defendants argue that Class Plaintiffs fail to sufficiently plead an association-in-fact enterprise within the meaning of RICO. Specifically, Class Defendants argue that the amended class action complaint lacks any allegation that the AIG Companies or the Starr Entities had any ongoing relationship or connection between and among them aside from being owned or controlled by AIG, its officers and directors. For purposes of Section 1962(c), an association-in-fact enterprise is “ ‘a group of persons associated together for a common purpose of engaging in a course of conduct.’ ” Boyle v. United States, — U.S. -, 129 S.Ct. 2237, 2244, 173 L.Ed.2d 1265 (U.S.2009) (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). The Supreme Court recently clarified in Boyle that an assoeiation-in-fact enterprise need not have an ascertainable structure, but must have “at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle, 129 S.Ct. at 2244-2245. While the existence of an enterprise “ ‘is an element distinct from the pattern of racketeering activity and proof of one does not necessarily establish the other’ ... the evidence used to prove the pattern of racketeering activity and the evidence establishing an enterprise ‘may in particular cases coalesce.’ ” Id. at 2245 (quoting Turkette, 452 U.S. at 583,101 S.Ct. 2524). The amended class action complaint alleges that Maurice R. Greenberg (“Greenberg”), the chairman and chief executive of AIG during the relevant time period, was responsible to some degree for the control and direction of the business operations of the AIG Companies and the Starr Entities. The complaint further alleges that Greenberg" }, { "docid": "9735005", "title": "", "text": "Savings, Franciscan Ceramics, and Schreiber. Indeed, the district court held that the plaintiffs’ failure in their pattern element pleading was a failure to allege activity in more than one criminal episode, not a failure to allege the requisite number or type of predicate acts. Its judgment that the plaintiffs failed to plead properly a “pattern of racketeering activity” therefore is reversed. Y. The district court also dismissed the plaintiffs’ claims under RICO sections 1962(a), (c), and (d) because it held that the plaintiffs failed to allege a proper “enterprise,” as defined by RICO section 1961(4). The sole reason the district court gave for its ruling was that the plaintiffs had failed to allege an enterprise with an “ ‘existence prior to and separate from’ the pattern of racketeering activity” that is the object of this lawsuit. We address first whether the district court properly dismissed the claims under section 1962(c); we then address the section 1962(a) and (d) claims. A. The Supreme Court held in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), that under section 1962(c) a RICO enterprise must be “an entity separate and apart from the pattern of [racketeering] activity in which it engages.” Id. at 583, 101 S.Ct. at 2529. The “pattern of racketeering activity is ... a series of criminal acts,” while an enterprise may be “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. Proof of the enterprise may be established by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit,” while proof of the racketeering activity is established by “evidence of the requisite number of acts of racketeering committed by the participants in the enterprise.” Id. Therefore, although the enterprise must be separate from the activity alleged, the persons involved and the conduct at issue will necessarily overlap. Thus, in Turkette, the Court recognized that while an enterprise must be separate from the illegal activity, proof oí these two elements may “coalesce”, even though “proof of one" }, { "docid": "8780470", "title": "", "text": "“the group as a whole must have a common link other than the racketeering activity.” McDonough v. National Home Ins. Co., 108 F.3d 174, 177 (8th Cir.1997). Thus, “[i]n assessing whether an alleged enterprise has an ascertainable structure distinct from that inherent in a pattern of racketeering,” it is appropriate to consider whether “the enterprise would still exist were the predicate acts removed from the equation.” Handeen, 112 F.3d at 1352. The complaints in this case fail to allege a continuous structure in the enterprise. In describing the different roles played by the members of the enterprise, the complaints basically restate the allegations against each of the defendants without explaining the interrelationship of these actions or defining coordinated roles played by the enterprise’s members. There is no allegation of any kind of chain of command or functional integration, as is typical of classic RICO enterprises. The only common factor joining the various defendants is their alleged participation in Schick’s scheme to defraud the plaintiffs. The complaints do not allege facts sufficient to support an inference that the enterprise existed as a continuous structure “separate and apart” from the commission of the predicate acts alleged, or that there was an organized mechanism for directing the enterprise’s affairs on an ongoing basis beyond the fraudulent scheme alleged. See e.g., Ray v. Gen. Motors Acceptance Corp., No. 92 Civ. 5043, 1995 WL 151852, at *3 (S.D.N.Y. Mar.28, 1995) (dismissing RICO claim alleging secondary liability in Ponzi scheme where plaintiff failed to plead with sufficient particularity the requisite elements that defendant was associated with an enterprise, and that the enterprise was separate and distinct from the alleged pattern of racketeering activity). See also Stephens, 962 F.2d at 815-16 (affirming district court’s finding that plaintiff had failed to establish a RICO claim because the members of the alleged RICO enterprise were linked only by the fact of their “direct or indirect participation” in the scheme to defraud plaintiff). As at least one other court has held, when considering similar allegations of a Ponzi scheme allegedly operated as a RICO enterprise, “[i]f the purpose of the" }, { "docid": "9848890", "title": "", "text": "the Court recited three elements of an enterprise: (i) an ongoing organization, (ii) functioning of the associates as a continuing unit and (iii) the existence of the enterprise separate and apart from the pattern of activity in which it engages. The Court referred to the latter criterion as “the third and final element in establishing the enterprise.” at 223 (emphasis added). Taken literally, that characterization suggests that there is no fourth element of an enterprise, that is, a separate identity between the enterprise and the racketeers. It is unnecessary to reach this question, however. Whether the complaint alleges that the four defendants individually constitute the enterprise or whether it alleges the defendants collectively constitute the enterprise, it fails to allege the three elements identified by the Supreme Court in Turkette and by the Third Circuit in Riccobene as necessary to establish an enterprise. The First Count of plaintiff’s complaint must be dismissed because the proper pleading of an “enterprise” as defined in 18 U.S.C. § 1961(4) is essential to prove a violation of any of the subsections of 18 U.S.C. § 1962 and to recover treble damages, attorney’s fees, and costs pursuant to 18 U.S.C. § 1964. B. Conspiracy Claim Plaintiff also alleges in its First Count that defendants violated Section 1962(d), the conspiracy subsection of RICO. This section provides: [i]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section. 18 U.S.C. § 1962(d). As discussed above, plaintiff fails to properly allege a violation of either Section 1962(b) or (c). However, even if these pleading deficiencies were corrected, plaintiff still does not properly allege a conspiracy cause of action against defendants. A conspiracy to violate RICO is comprised of three elements: (1) knowledge by the defendant of the essential nature of the conspiracy; (2) the defendant’s objective manifestation of an agreement to participate in the conduct of the affairs of an enterprise; and (3) an overt act, which need not be a crime, in furtherance of the conspiracy. United States v. Sutherland, 656 F.2d 1181 n." }, { "docid": "1494360", "title": "", "text": ", however, that “[t]he association in fact of all defendants constitutes an ‘enterprise’ within the meaning of 18 U.S.C. § 1961(4).” (D.I. 1 at ¶ 166) See Seville Indus. Machinery, 742 F.2d at 790 (plaintiff identified the four entities it believed were the enterprises that conspired against it and the “rules of pleading require nothing more at this early juncture than that bare allegation”); Cemar, Inc. v. Nissan Motor Corp., Civ. No. 87-165-CMW, slip op., 1990 WL 3038 (D.Del.1990) (plaintiff is not required to establish the enterprise requirement, or any other requirement, at the pleading stage; it is enough to identify the enterprise by stating that the defendants formed the enterprise). Defendants’ contention that plaintiff failed to plead a RICO enterprise, therefore, is without merit. B. The RICO “Separate Existence” Requirement The essential elements of a civil RICO claim are “(1) the existence of a RICO ‘enterprise’; (2) the existence of ‘a pattern of racketeering activity’; (3) a nexus between the defendant, the pattern of racketeering activity or the RICO ‘enterprise’; and (4) resulting injury to plaintiff, in his business or property.” Klapper v. Commonwealth Realty Trust, 657 F.Supp. 948, 953 (D.Del.1987). In addition, to establish the existence of a RICO enterprise, a plaintiff must demonstrate that (1) the enterprise is an ongoing organization, with some form of structure which is used in making and carrying out decisions; (2) the enterprise members function as a continuing unit with established duties; and (3) the enterprise has an existence separate from the pattern of racketeering activity in which it engages. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981); accord United States v. Riccobene, 709 F.2d 214, 221 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); Seville Indus. Machinery, 742 F.2d at 789-90. Defendants rely on this third element, the separate existence requirement, in moving to dismiss plaintiffs RICO claims. Defendants’ reliance on the separate existence requirement, in this context, is misplaced. The Third Circuit expressly held in Seville that these three requirements are necessary to prove—not to plead—the" }, { "docid": "2566063", "title": "", "text": "illegal action may be demonstrated in a variety of ways. For example, if the predicate acts “involve a distinct threat of long-term racketeering activity, either implicit or explicit,” continuity may exist. Id. Similarly, where the “predicates are a regular way of conducting defendant’s ongoing legitimate business” or “are part of an ongoing entity’s regular way of doing business,” such as “where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes,” they may establish the presence of an open-ended scheme. Id. Plaintiffs here have alleged continuity of both a closed-ended as well as an open-ended nature. Each dissemination of an allegedly false financial statement, press release or offering circular and each fraudulent statement made in a face-to-face setting constitutes a violation of one or more predicate acts. These alleged misstatements to public and private investors occurred repeatedly over a several year period, all in furtherance of the Project. In addition, had the alleged scheme not been uncovered, it is reasonable to infer that it would have continued for quite some time into the future. Accordingly, the RICO counts sufficiently plead a pattern of racketeering activity. B. § 1962(a) Claims 1. Primary Claim Defendants Bodden, Schaefer and Logal move to dismiss those claims asserting violations of § 1962(a). Bodden contends that the allegations are insufficient in that they do not state that he invested any income derived from racketeering activity in the enterprise. While Bodden is correct in noting that the plain language of § 1962(a) requires a plaintiff to plead that a defendant invested income derived from a pattern of racketeering activity to acquire an interest in, establish, or operate an enterprise, he mistakenly contends that Plaintiffs have not done so here. Plaintiffs accuse Bodden of being a part of an enterprise which has violated the RICO statute by obtaining monies from the investing public through fraudulent securities offerings and sales of stock and investing this income in the acquisition, establishment or operation of the enterprise. Plaintiffs do not simply track the language of § 1962(a) as suggested by Bodden;" } ]

[ { "docid": "22949340", "title": "", "text": "of impairments in the Social Security Regulations. 20 C.F.R. Appendix to Sub-part P at 326 ff. Therefore, although there is conflicting evidence, and although we might have reached a different conclusion had we been the initial trier of fact, we hold that there is substantial evidence to support the Secretary’s determination. Gaultney next asserts that the Administrative Law Judge applied an improper legal standard in reaching his decision in that he failed to take into account the subjective testimony of Gaultney, his friends, and members of his family regarding the pain he suffers. If this claim were well founded, it would justify reversal or remand. Hayes v. Celebrezze, 5 Cir. 1963, 311 F.2d 648. It is well settled that pain alone can be disabling, even where its existence is unsupported by “objective medical, clinical or laboratory evidence.” Prewitt v. Gardner, 5 Cir. 1968, 389 F.2d 993. Furthermore, we have often held that the judge must consider subjective evidence of pain as testified to both by the claimant and by other lay witnesses. DePaepe v. Richardson, 5 Cir. 1972, 464 F.2d 92, 94, 99-100; Hayes v. Celebrezze, supra. However, we have never suggested that the subjective evidence should take precedence over conflicting objective medical testimony; nor have we ever held that all pain is disabling. The Ninth and Tenth Circuits have properly held that the inability to work without incurring some pain or discomfort is not necessarily disability. Mark v. Celebrezze, 9 Cir. 1965, 348 F.2d 289; Dvorak v. Celebrezze, 10 Cir. 1965, 345 F.2d 894. Therefore, the question of how much pain is disabling is for the Administrative Law Judge, whose task it is to resolve conflicts in the evidence. Richardson v. Perales, supra. Gaultney asserts that the Administrative Law Judge ignored the evidence of pain. ' However, we see no reason to question the Judge’s statement that he considered and weighed all of the demonstrative medical evidence, considered the diagnoses and expert medical opinions, weighed the testimony of the claimant as to his pain and discomfort on movement and activity, and the lay testimony from witnesses who testified at" } ]

[ { "docid": "23273623", "title": "", "text": "PER CURIAM: Joey Allen appeals from the denial by the Secretary of Health and Human Resources of his application for disability benefits and supplemental security income under the Social Security Act, 42 U.S.C.A. §§ 423(a); 1381a. The district court affirmed the denial. Allen challenges the legal standard followed and findings of fact made by the administrative law judge, as well as the district court’s denial of his motion to remand in light of new evidence. Finding no reversible error and the Secretary’s decision to be supported by substantial evidence, we affirm. Allen is a middle-aged male with a ninth grade education. He has been employed variously as a horse trainer, railroad freight conductor, carpenter, carpenter’s helper, and laborer. He was last employed in 1976 as a construction laborer. On November 18, 1976, Allen applied for disability benefits and supplemental security income, alleging a disability based on pain in and behind his eyes causing him to go unconscious several times a day. After a hearing, an administrative law judge denied the application on the ground Allen was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The" }, { "docid": "1261927", "title": "", "text": "which the Secretary must consider: (1) objective medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) claimant’s age, educational background and work history. De Paepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Davila v. Weinberger, 408 F.Supp. 738, 741 (E.D.Pa.1976); Barats v. Weinberger, 383 F.Supp. 276, 282-83 (E.D.Pa.1974). After reviewing the medical evidence and the testimony, the Administrative Law Judge found that plaintiff’s subjective symptomology was not supported by clinical findings or laboratory data; that substantial medical documentation of record established that plaintiff had no significant physical abnormalities or functional limitations; and that plaintiff’s assertions of disabling pain were not credible. The Administrative Law Judge concluded that plaintiff was not precluded from returning to his previous work, and denied his claim (Tr. 19-32). There is no dispute in the record as regards the objective medical data and findings of the doctors who treated and examined plaintiff. It is indisputable that plaintiff suffered a severe injury resulting in discogenic disease and that a cervical fusion of the C-5 and C-6 vertebra was performed on him. However, this in itself does not establish plaintiff’s disability. The salient factor in this case is plaintiff’s subjective complaint of pain. It is this pain, which plaintiff asserts to be unbearable, that is disabling. The Administrative Law Judge chose to disbelieve plaintiff. A thorough review of the record clearly shows this finding to be unsupportable. It is quite true that pain, because it is experienced only by the person suffering from it, does not easily lend itself to objective evaluation. Yet, “even pain unaccompanied by objectively observable symptoms which is nevertheless real to the sufferer and so intense as to be disabling will support a claim for disability benefits”. Bittel v. Richardson, 441 F.2d 1193, 1195 (3rd Cir. 1971); Ber v. Celebrezze, 332 F.2d 293, 299 (2nd Cir. 1964). Of course, the possibility of fabrication or exaggeration cannot be overlooked. Baith v. Weinberger, 378 F.Supp. 596, 603 (E.D.Pa.1974). Thus, the Administrative Law Judge was quite properly concerned, as her written opinion demonstrates, with the possibility of fabrication or exaggeration by plaintiff" }, { "docid": "7573336", "title": "", "text": "a beautician. Arnold’s argument that we reverse the final decision of the Secretary rests upon the premise that she suffers from a medically determinable condition, severe migraine headaches, for which the medical profession cannot offer clinical findings and laboratory tests to document its existence. She has produced medical findings, she argues, in the form of diagnosis of a medical condition that could reasonably be expected to produce her symptomotology— thus the administrative law judge employed an incorrect standard of law in relying on clinical findings alone to assess Arnold’s credibility concerning subjective pain. We disagree with Arnold’s premise and the conclusion reached because the judge did not find, as Arnold argues, that since Arnold’s pain eludes precise diagnosis or the etiology cannot be established by objective medical tests or laboratory data she must be excluded from the protection offered by the Social Security disability system. The record and the judge’s findings clearly show that the judge accepted the fact that Arnold suffered from migraine headaches that did, indeed, produce pain, but he did not believe her testimony that the pain is so severe that she cannot engage in substantial gainful activity. Therefore, the crucial issue in this case is Arnold’s credibility. It is well settled that “[t]he findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary.” Allen v. Schweiker, 642 F.2d 799, 800 (5th Cir.1981). (Citing Goodley v. Harris, 608 F.2d 234 (5th Cir.1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir.1979)). Nevertheless, “it is imperative that the court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Simmons, 602 F.2d at 1236. (Citing Williams v. Finch, 440 F.2d 613, 615 (5th Cir.1971)). While “symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability,” the “administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain." }, { "docid": "909027", "title": "", "text": "necessary in order to obtain a full record of the facts in this case,” since, when he asked: “Is that agreeable with you?”, Mrs. Benson may well have overlooked that part of the statement: “I am assuming you do not wish to have a representative.” Mrs. Benson’s reply to this statement was ambiguous. Such a reply, therefore, must be considered something less than an unequivocal waiver. However, we conclude that regardless of the adequacy of the notice in this case, this hearing did not meet the standards of a “full and fair hearing” set out by this Court in Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Goodman v. Richardson, 448 F.2d 388 (5th Cir. 1971); Cross v. Finch, 427 F.2d 406 (5th Cir. 1970). This Court has held that subjective evidence of pain, as testified to by the claimant, when linked to a “medically determinable impairment” may be sufficient to support a finding by the secretary of the inability to engage in any substantial gain ful activity, although testimony about the claimant’s pain is based on the purely subjective experience of the patient and the existence of pain itself is unsupported by objective medical evidence. DePaepe v. Richardson, 464 F.2d 92, 99, 100 (5th Cir. 1972); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, the administrative law judge stated that proof on behalf of the claimant must amount to an “impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” He also said: “Allegations of inability to work due to physical or mental impairment must be substantiated by clinical or laboratory findings documenting physiological or psychological abnormalities.” His findings do not mention the testimony of the claimant that pain kept her from performing any gainful occupation nor the fact that this testimony was supported by her daughter who attended court with her. The only reference to the subjective symptoms of which the claimant complained is in the following statements: At no time during the hearing was the claimant observed to be suffering any physical" }, { "docid": "22011776", "title": "", "text": "perform his customary occupation, the burden of proof shifts to the Secretary to show that the claimant, given his age, education, and work experience, has the capacity to perform a specific job that exists in the national economy. Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975). If there are no findings as to the latter, the Secretary’s decision can be sustained only if there is substantial evidence that the claimant’s impairment does not prevent him from engaging in his previous customary occupation. Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Besseck v. Finch, 342 F.Supp. 957 (W.D.Va.1972). Before making a finding of the claimant’s ability or inability to engage in any substantial gainful activity, the Secretary must consider (1) the objective medical facts (clinical findings); (2) the medical opinions of the examining or treating physicians based upon those facts; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant’s background, work history, and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The claimant’s impairments “must be considered in combination and must not be fragmented in evaluating their effects.” Id. Further, the administrative law judge must explicitly consider the claimant’s subjective symptoms. DePaepe v. Richardson, 464 F.2d 92, 99 (5th Cir. 1972). While he has a right as finder of fact to reject such testimony entirely, failure to explicitly do so could lead to a conclusion that he failed to consider it at all. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). To so disregard the claimant’s subjective symptoms is error and grounds for reversal. DePaepe v. Richardson, supra; Black v. Richardson, 356 F.Supp. 861, 871 (D.S.C.1973). When the plaintiff Rose Smith was treated in 1965 and 1966, she was diagnosed as having a heart murmur, hypertension, and meningovascular syphilis, which was found to be the cause of right complete ophthalmoplegia. During her hospitalization in August of 1967, immediately before the expiration of her special earnings requirement status, she was diagnosed as having tuberculosis of the lymph nodes and intestines;" }, { "docid": "4213930", "title": "", "text": "Crowder v. Gardner, 249 F.Supp. 678, 680 (D.S.C.1966). The conduct of the Administrative Law Judge as revealed in the hearing transcript and his decision reveals that his only concern was the existence of clinical demonstrations of certain specific ailments. His questions of the claimant were merely prefunctory and nonessential to any question of her disability. Although the claimant’s non-attorney representative conducted a somewhat lengthy examination of his client the Administrative Law Judge never felt compelled to ask even one fol lowup question of the claimant. Even more revealing is the fact that even after the examination of the claimant’s two daughters by the plaintiff’s representative the Administrative Law Judge again never felt compelled to ask either of them one question. It is not in itself important that the Administrative Law Judge asked no questions but it is clear that his sole concern was the clinical demonstrations of specific ailments contained in the medical reports. The elicitation of testimony and even the hearing itself was merely perfunctory. For all practical purposes the hearing might as well have not occurred. The Administrative Law Judge makes no comment on testimony in his Discussion on Conclusions. He makes no mention of the existence or severity of the claimant’s pain. His sole concern as revealed in the Decision is the existence of clinical demonstrations of specific ailments. Pain, despite what the defendant claims in his Memorandum, page 17, can in itself establish disability. Celebrezze v. Warren, 339 F.2d 833 (10th Cir. 1964); Brandon v. Gardner, 377 F.2d 488 (4th Cir. 1967); Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Moncrief v. Gardner, 357 F.2d 651 (5th Cir. 1966). Furthermore, this Court has accepted the viewpoint as enunciated in Bittel v. Richardson, 441 F.2d 1193 (3rd Cir. 1971), and Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964) that: “There can be no doubt that symptoms real to the claimant though unaccompanied by objective medical data may support a claim for disability benefits.” Kelley v. Weinberger, supra, 391 F.Supp. at 1341. In addition, the Administrative Law" }, { "docid": "7573337", "title": "", "text": "her testimony that the pain is so severe that she cannot engage in substantial gainful activity. Therefore, the crucial issue in this case is Arnold’s credibility. It is well settled that “[t]he findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary.” Allen v. Schweiker, 642 F.2d 799, 800 (5th Cir.1981). (Citing Goodley v. Harris, 608 F.2d 234 (5th Cir.1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir.1979)). Nevertheless, “it is imperative that the court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Simmons, 602 F.2d at 1236. (Citing Williams v. Finch, 440 F.2d 613, 615 (5th Cir.1971)). While “symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability,” the “administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for this Court.” Allen, 642 F.2d at 801 (citations omitted). In this case the only issue is the quantum of pain suffered by Arnold. There is substantial evidence to support the Secretary’s decision that her impairment does not result in an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months____” Section 223(d)(1) of the Social Security Act, 42 U.S.C. § 423(d)(1) (1976). Using the factors in combination with each other enunciated in De Paepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972), an analysis of the objective medical facts or clinical findings, and the diagnosis of examining physicians that we have heretofore discussed, measured in the light of the uncorroborated subjective evidence of pain of a 37-year-old, high-school educated" }, { "docid": "22436188", "title": "", "text": "judgment for that of the Secretary. Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977). Substantial evidence is “more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665 (1939), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938); accord Anderson v. Schweiker, 651 F.2d 306, 308 (5th Cir. 1981). Therefore, this court, like the ALJ, must consider the evidence as a whole, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), including “(1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [a spouse], other members of the family, [her] neighbors and others who have observed [her], and (4) the claimant’s age, education and work history.” DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). The initial erroneous premise of the ALJ upon which he based his decision was that the appellant did not make out a prima facie case of disability because she did not submit medical records of her pre-June, 1973 condition. To satisfy this primary phase of her burden the appellant is required to demonstrate that she is no longer capable of performing her past work. Perez v. Schweiker, 653 F.2d 997, 999-1000 (5th Cir. 1981). See 20 C.F.R. §§ 404.1503 et seq. Appellant’s testimony was that in 1969 she could no longer perform the tasks at her job and therefore resigned. Her physician, Dr. Lawrence, based his evaluation of her disability on the requirements of standing, stooping, lifting and walking. He further testified she was unable to perform gross manipulation due to pain and swelling in her hands. This testimony stands uncontradicted. An administrative law judge may not arbitrarily reject uncontroverted medical testimony. Goodley v. Harris, 608" }, { "docid": "3314722", "title": "", "text": "Davis had “chronic low back pain that is not amenable to any medical means that I have available to me.” Nothing in Dr. Haller’s statements or in his medical reports purports to speak to the severity of Mrs'. Davis’ pain. In context, Dr. Haller’s use of the phrase “chronically disabled” in his December 20, 1974, report was clearly intended to mean that Mrs. Davis’ back pain was inveterate and likely to continue. These statements vof temporal duration were never intended to be interpreted as conclusions that Mrs. Davis suffered from pain of such severity or duration that she could not be gainfully employed, and if they had been so intended, they would have been utterly unsupported by any diagnostic data known to the doctor. Pain alone, of course, may be disabling, even when a medical cause for the pain is not objectively discernible, and an administrative law judge must consider subjective testimony of pain by the claimant. DePaepe v. Richardson, 464 F.2d 92, 94, 99-100 (5th Cir. 1972). But it is for the administrative law judge, not the reviewing court, to assess the weight of the subjective testimony, and “we have never suggested that the subjective evidence should take precedence over conflicting objective medical testimony; nor have we ever held that all pain is disabling.” Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974); Rhynes v. Califano, supra, 586 F.2d at 390. Given the lack of medical data supporting her claim, Mrs. Davis’ ease was forced to rise or fall on the strength of her own testimony. The record discloses that the administrative law judge carefully and sensitively questioned Mrs. Davis concerning her symptoms and her daily routines. Although accepting the assertion that she had pain, he concluded it was not so severe that it precluded gainful employment in jobs involving only light or sedentary work. As we stated in Gaultney, “[i]t is not necessarily inconsistent to find that a claimant suffers pain in fact, and yet is not so severely impaired as to meet the stringent test for disability imposed by the Act.” 505 F.2d at 946. The administrative" }, { "docid": "131168", "title": "", "text": "Symptoms which are real to the claimant, although unaccompanied, by objective medical data, may support a claim for disability benefits, providing [claimant] satisfies the requisite burden of proof.” Bittel v. Richardson, 441 F. 2d 1193, 1195 (3d Cir. 1971) (emphasis added). Of course, where subjective symptoms such as pain or discomfort are involved, the possibility of fabrication or exaggeration by claimants cannot be overlooked. For this reason, complaints of pain and suffering, unsubstantiated by medical evidence or grossly disproportionate to medically ascertainable symptoms or ailments, will not support a claim for disability benefits. Calpin v. Finch, 316 F.Supp. 17 (W.D.Pa.1970). Subjective complaints, while relevant, must “be evaluated by the finder of fact in light of the other evidence that may bear on the claimant’s physical status.” Anderson v. Richardson, 352 F.Supp. 1203, 1205 (E.D.Pa.1972). Where subjective complaints dovetail with medical data and opinion, they can be instrumental in supporting a claim for disability benefits. See, e. g., Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964) ; DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Santiago v. Richardson, 345 F.Supp. 438 (E.D.Pa.1972) ; Plouse v. Richardson, 334 F.Supp. 1086 (W.D.Pa.1971); Powell v. Richardson, 355 F. Supp. 359 (E.D.Pa.1973). There is little doubt that if Baith’s subjective complaints were accepted as true, he would be disabled within the meaning of the Social Security Act. If it is true that he must lie down several times a day due to fatigue and shortness of breath, it is unlikely that he can hold a full-time job. The vocational expert testified that if the claimant is unable to sleep more than two and a half to three hours a night, as Baith testified, he would- not be able to hold a job. In concluding that Baith was not disabled, the Administrative Law Judge either disbelieved claimant’s subjective complaints, or failed to consider them. Under' the law it is his prerogative to disbelieve Baith so long as his conclusion is supported by sufficient evidence, but if he did not consider claimant’s subjective complaints, he committed an error of law. During the course of his" }, { "docid": "23273626", "title": "", "text": "this Court. See, e. g., Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971); Celebrezze v. Maxwell, 315 F.2d 727 (5th Cir. 1963). Allen, however, asserts three grounds of error. He first contends the administrative law judge applied an improper legal standard by basing the denial solely on the lack of objective medical evidence and by disregarding his subjective symptoms of pain. He correctly argues that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability. See, e. g., DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963). A review of the opinion of the administrative law judge, however, indicates the judge did consider Allen’s symptomology. The judge stated only that “[i]n weighing the evidence, I must take into consideration the fact that [Allen’s] complaints have not been substantiated by any objective medical evidence” (emphasis supplied). The opinion clearly shows the judge based his decision not only on the lack of medical evidence but also on Allen’s failure to prove through testimony he suffered from disabling pain. Allen next asserts the administrative law judge failed to make adequate findings of fact, specifically with regard to whether he in fact had blackouts and feelings of pain, and whether his former wife was a credible witness. The ultimate findings of fact, however, adequately resolved these subordinate issues. The judge specifically found that Allen’s testimony, the primary evidence in support of his allegation of pain, was not credible. He also found that Allen’s “impairments [which included ‘a Personality Disorder and complaints of pain in his eyes’] do not prevent him from performing certain jobs.... ” Thus, there was a clear, though perhaps implicit, rejection of the subjective testimony as to the disabling nature of Allen’s pain. While the findings in this case could be improved upon, they are sufficient for this Court to determine the denial of benefits is supported by substantial evidence. Cf. Acevedo Ramirez v. Secretary of Health, Education and Welfare, 550 F.2d 1286 (1st Cir. 1977) (explicit finding rejecting claimant’s testimony as" }, { "docid": "23273627", "title": "", "text": "failure to prove through testimony he suffered from disabling pain. Allen next asserts the administrative law judge failed to make adequate findings of fact, specifically with regard to whether he in fact had blackouts and feelings of pain, and whether his former wife was a credible witness. The ultimate findings of fact, however, adequately resolved these subordinate issues. The judge specifically found that Allen’s testimony, the primary evidence in support of his allegation of pain, was not credible. He also found that Allen’s “impairments [which included ‘a Personality Disorder and complaints of pain in his eyes’] do not prevent him from performing certain jobs.... ” Thus, there was a clear, though perhaps implicit, rejection of the subjective testimony as to the disabling nature of Allen’s pain. While the findings in this case could be improved upon, they are sufficient for this Court to determine the denial of benefits is supported by substantial evidence. Cf. Acevedo Ramirez v. Secretary of Health, Education and Welfare, 550 F.2d 1286 (1st Cir. 1977) (explicit finding rejecting claimant’s testimony as to his pain not required, in light of other findings); Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974) (while further findings concerning claimant’s pain would have been desirable, findings actually made were sufficient in view of the record); Collins v. Matthews, 456 F.Supp. 813 (S.D. Ga.1978) (unnecessary to make specific findings as to all the facts, since the basis for the denial was clear). Allén’s final contention is that the district court should have remanded the case to the Secretary for additional hearings in light of a new medical report. This report consists of a one-page physical capacities evaluation sheet prepared by a physician identified as G. Lopez, M. D. The district court held the new report did not, warrant a remand, in light of the medical reports that had already been presented to the administrative law judge. The court also noted the report gave no indication it was based on clinical tests or anything more than Allen’s complaints. To justify a remand to the Secretary for consideration of additional evidence, a claimant must" }, { "docid": "909028", "title": "", "text": "is based on the purely subjective experience of the patient and the existence of pain itself is unsupported by objective medical evidence. DePaepe v. Richardson, 464 F.2d 92, 99, 100 (5th Cir. 1972); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, the administrative law judge stated that proof on behalf of the claimant must amount to an “impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” He also said: “Allegations of inability to work due to physical or mental impairment must be substantiated by clinical or laboratory findings documenting physiological or psychological abnormalities.” His findings do not mention the testimony of the claimant that pain kept her from performing any gainful occupation nor the fact that this testimony was supported by her daughter who attended court with her. The only reference to the subjective symptoms of which the claimant complained is in the following statements: At no time during the hearing was the claimant observed to be suffering any physical or mental discomfort, nor was physical pain or discomfort evidenced by any facial grimaces or restlessness. The medical evidence reveals that although the claimant suffers some discomfort from her impairments, they do not appear severe. It will be noted that the ALJ here refers to the “medical evidence.” There is no indication that he paid any attention to the claimant’s own testimony about a continuous pain. Certainly, he made no finding that he disbelieved her testimony, since he made no credibility findings at all. Since the record discloses a case upon which the claimant could have prevailed if all of her evidence had been believed, it was clear error for the administrative law judge to disregard completely the subjective evidence developed at the hearing. Here, the ALJ apparently applied an improper legal The case must, therefore, be remanded for a further hearing. standard to the evidence, The judgment is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion. . The hearing lasted only 51 minutes." }, { "docid": "23273624", "title": "", "text": "was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for" }, { "docid": "23083738", "title": "", "text": "he could walk normally, he could not stoop or bend. The AU pointed to no evidence that Epps could function in any of his former occupations with these limitations on his motion. Rather, the hearing examiner found that Epps’ pain was not disabling and, although he acknowledged that claimant’s back motion was impaired, he simply asserted that Epps could perform his former work as a records clerk. However, the only medical evidence in the record of Epps’ ability to perform his former jobs is favorable to him. Dr. Nie- meyer concluded that Epps’ back condition rendered him unable to serve as a records clerk and recommended that he be categorized as disabled from performing that job by the VA. Dr. Kerr repeatedly reported that Epps was unable to work in any capacity, and Dr. Mezey noted that the claimant was “totally disabled from doing any sort of activity without getting a painful exacerbation [of his back condition].” In addition, the VA found that Epps was totally disabled and incapable of working as a records clerk. While the physicians’ opinions and the VA’s decision that Epps was disabled and could not perform his previous jobs are of course not binding on the Secretary, they are evidence “entitled to great weight.” DePaepe v. Richardson, 464 F.2d at 101 (noting significance of VA finding of disability); see Goodley v. Harris, 608 F.2d at 236-37 (observing that an AU may not arbitrarily ignore uncontroverted medical testimony and suggesting that where there is medical evidence of disability the government cannot deny disability benefits without some medical opinion that claimant is in fact capable of gainful employment). It is true that the “mere existence of pain is not an automatic ground for obtaining disability benefits” and that the “factual determination of whether the claimant is able to work despite some pain is within the discretion of the Administrative Law Judge and will be upheld if supported by substantial evidence.” Fortenberry v. Harris, 612 F.2d at 950; see Newborn v. Harris, 602 F.2d 105, 107 (5th Cir. 1979). However, while the hearing examiner may have permissibly concluded" }, { "docid": "4213931", "title": "", "text": "have not occurred. The Administrative Law Judge makes no comment on testimony in his Discussion on Conclusions. He makes no mention of the existence or severity of the claimant’s pain. His sole concern as revealed in the Decision is the existence of clinical demonstrations of specific ailments. Pain, despite what the defendant claims in his Memorandum, page 17, can in itself establish disability. Celebrezze v. Warren, 339 F.2d 833 (10th Cir. 1964); Brandon v. Gardner, 377 F.2d 488 (4th Cir. 1967); Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Moncrief v. Gardner, 357 F.2d 651 (5th Cir. 1966). Furthermore, this Court has accepted the viewpoint as enunciated in Bittel v. Richardson, 441 F.2d 1193 (3rd Cir. 1971), and Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964) that: “There can be no doubt that symptoms real to the claimant though unaccompanied by objective medical data may support a claim for disability benefits.” Kelley v. Weinberger, supra, 391 F.Supp. at 1341. In addition, the Administrative Law Judge finds that there was no evidence of arthritic impairment because after balancing the medical evidence he concludes that greater weight must be given to the physician who performed, or had performed, tests for the symptomol-ogy. From that statement we are led to conclude that Dr. Lanman’s X-rays totally failed to detect the existence of any arthritic conditions. This is particularly misleading because the only X-ray taken by or for Dr. Lanman that related to her arthritic condition was of the claimant’s left knee. It is interesting that only one such X-ray was taken, and that one of the knee, when the other medical data supported a finding of arthritis in both of the claimant’s shoulders, hands, and lumbar spine. Another matter of particular concern is the effectiveness of the claimant’s previous representative. It is not argued that the mere failure of a disability claimant to be represented by an attorney at a Social Security hearing is sufficient to warrant reversal or remand of an adverse administrative decision. However, the importance of counsel in an" }, { "docid": "23273625", "title": "", "text": "ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for this Court. See, e. g., Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971); Celebrezze v. Maxwell, 315 F.2d 727 (5th Cir. 1963). Allen, however, asserts three grounds of error. He first contends the administrative law judge applied an improper legal standard by basing the denial solely on the lack of objective medical evidence and by disregarding his subjective symptoms of pain. He correctly argues that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability. See, e. g., DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963). A review of the opinion of the administrative law judge, however, indicates the judge did consider Allen’s symptomology. The judge stated only that “[i]n weighing the evidence, I must take into consideration the fact that [Allen’s] complaints have not been substantiated by any objective medical evidence” (emphasis supplied). The opinion clearly shows the judge based his decision not only on the lack of medical evidence but also on Allen’s" }, { "docid": "131167", "title": "", "text": "but claimant testified that even when self-employed as a carpenter, he could do the jobs only if the exact task required was laid out and the lumber company told him what was needed by way of supplies. Claimant completed the eighth grade and can add, subtract, multiply and divide, but he claims to lack familiarity with what materials would be needed for particular' jobs and their costs. However, beyond this, the vocational expert’s testimony provides strong support for the Secretary’s conclusion. Baith’s physical condition was described to Rubin in great detail, including claimant’s ulcer, anxiety, headaches and shortness of breath, and Rubin’s conclusions reflected his expert knowledge about job requirements and work environments. The Secretary’s finding that Baith could perform bench assembly tasks or serve as a retail clerk in certain departments is adequately supported on this record. The only difficult legal question in this case is whether the Secretary gave proper consideration to claimant’s subjective complaints. The Social Security Act and its implementing regulations concerning disability “require a subjective determination of the claimed disability. Symptoms which are real to the claimant, although unaccompanied, by objective medical data, may support a claim for disability benefits, providing [claimant] satisfies the requisite burden of proof.” Bittel v. Richardson, 441 F. 2d 1193, 1195 (3d Cir. 1971) (emphasis added). Of course, where subjective symptoms such as pain or discomfort are involved, the possibility of fabrication or exaggeration by claimants cannot be overlooked. For this reason, complaints of pain and suffering, unsubstantiated by medical evidence or grossly disproportionate to medically ascertainable symptoms or ailments, will not support a claim for disability benefits. Calpin v. Finch, 316 F.Supp. 17 (W.D.Pa.1970). Subjective complaints, while relevant, must “be evaluated by the finder of fact in light of the other evidence that may bear on the claimant’s physical status.” Anderson v. Richardson, 352 F.Supp. 1203, 1205 (E.D.Pa.1972). Where subjective complaints dovetail with medical data and opinion, they can be instrumental in supporting a claim for disability benefits. See, e. g., Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964) ; DePaepe v. Richardson, 464 F.2d 92 (5th Cir." }, { "docid": "1243615", "title": "", "text": "S.Ct. at 1427. There are many cited cases for the proposition that four elements of proof must be considered by the Secretary in determining whether the claimant is disabled under the Social Security Act. These elements are: (a) Objective medical facts or clinical findings. (b) Diagnosis of examining physicians. (c) Subjective evidence of pain and disability as testified to by the claimant and as observed by others. (d) The claimant’s age, education and work history. These elements must also be considered in their interrelationship with each other. See DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972), and Underwood v. Ribicoff, 298 F.2d 850 (1st Cir. 1962). In this case the evidence with regard to (a), (b) and (c) stand before the Secretary without dispute. There is very little dispute as to the claimant’s age, education and work history. There can be no doubt that symptoms real to the claimant though unaccompanied by objective medical data may support a claim for disability benefits. Bittel v. Richardson, 441 F.2d 1193 (3rd Cir. 1971), and Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964). The Administrative Law Judge, did, indeed, find that the plaintiff may suffer some discomfort even though the 'plaintiff testified that he had pain in the lower part of his back which runs down his left leg causing his left leg to give away. He also testified as to numbness in his left leg, left arm and fingers. He also testified that he felt nervous and had painful headaches. He also testified that he could no longer drive an automobile because his legs and hands became numb and he could not feel the steering wheel. He also testified that his lack of leg control caused him to at times fall down when he moved from a sitting position to a standing position. This numbness was totally ignored by the Administrative Law Judge. The facts also disclose that the plaintiff is 51 years of age, has a 9th grade education, is not particularly trained or skilled in any particular field, had a fairly long period of employment at United States" }, { "docid": "7834781", "title": "", "text": "the Social Security Act because of his condition of hypoglycemia. Smallwood testified before the Administrative Law Judge that due to his present condition he experiences episodes of weakness, dizziness, reduced energy level, as well as periodic blackouts. Smallwood and his wife testified that if the symptoms were recognized in sufficient time the blackouts could be avoided and appellant’s condition temporarily relieved by the ingestion of metabolated glucose or orange juice. They further testified that appellant suffers from residual ill effects following an attack that sometimes last several hours after the episode. Although neither Smallwood nor his wife were able to specifically relate the frequency of the blackouts, they testified that Smallwood experienced episodes in which he was in danger of losing consciousness about twice a week. These episodes were brought on by physical exertion as well as emotional disturbance or stress, such as meeting a schedule. Notwithstanding his condition, Smallwood testified that he continued to drive his automobile, attended church each week and belonged to the Lions Club. He also spends about two hours a day with his collection of National Airlines’ memorabilia. Smallwood complains in this appeal that the Secretary failed to properly evaluate and consider testimony relating his periodic loss of consciousness without warning. The law is well settled that an administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by subjective complaints. Allen, supra, at 801; Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979); Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). Although the issue of credibility is clearly reserved to the Secretary, Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir. 1981), it nevertheless remains our duty to determine whether substantial evidence supports the Secretary’s conclusion. Perez, supra, at 1001. In his decision denying relief the Administrative Law Judge specifically found that Smallwood’s “allegations of episodes of weakness, dizziness, reduced energy level and other subjective symptoms are credible to preclude heavy work but are not credible to preclude at least light work which does not require climbing, balancing, and working with or around hazardous machinery.”" } ]

[ { "docid": "669717", "title": "", "text": "is not expressed in “clear and unequivocal terms” in the limitation of liability clause relied upon by the defendants, the court holds that this limitation of liability clause does not relieve Stal-Laval and ASEA AB of any alleged tort liability. Bahamas Agricultural Industries Ltd. v. Riley Stoker Corp., 526 F.2d 1174, 1179 (6th Cir. 1975). Accord,. Berwind Corp. v. Litton Industries, Inc., 532 F.2d 1, 3-8 (7th Cir. 1976); Jig the Third Corp. v. Puritan Marine Insurance Underwriters, 519 F.2d 171, 178-79 (5th Cir. 1975). III. THE SUBSTANTIVE ISSUES A. Can purely economic losses be recovered under a strict liability in tort theory ? Essentially, a defective product can cause three types of damage: personal injury, property damage, and economic loss. Both personal injury and property damage involve direct physical injury. Personal injury, of course, results when a defective product causes injury to a person; and property damage results when a defective product causes injury to property. Economic loss, on the other hand, is the loss sustained by the one who possesses the defective product. Economic loss can be both “direct” and “indirect.” “Direct economic loss” is the loss attributable to the decreased value of the product itself. It is measured by the difference between the actual value of the defective product and the value it would have had had it not been defective. “Indirect economic loss” is the consequential damage an owner of a defective product sustains. Most often these consequential damages are business losses an owner incurs when he is deprived of the product’s use. In the instant case Mead seeks to recover both direct and indirect economic losses. Mead claims that its direct economic loss amounted to $250,000 (the amount required to put the # 12 turbine back in working condition) and that its indirect economic loss amounted to $1,510,000 (its business losses attributable to the outage of the # 12 turbine). The defendants claim, however, that economic losses cannot be recovered under a strict liability in tort theory. The question whether economic losses can be recovered under a strict liability theory lies in the field of" } ]

[ { "docid": "7221871", "title": "", "text": "damage or economic damage, and purchasers can recover damage to the defective product if it is characterized as property damage. 1. Statutory Product Liability Claim and Tort Claims Ohio’s product liability statute only permits recovery for “harm,” Ohio Rev.Code § 2307.73(A)(2), defined as “death, physical injury to person, serious emotional distress, or physical damage to property other than the product involved. Economic loss is not ‘harm’.” Ohio Rev.Code § 2307.71(G). Economic loss is defined as “direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the product involved and nonphysical damage to property other than that product. Harm is not ‘economic loss’.” Ohio Rev.Code § 2307.71(B). Furthermore, when the economic loss rule applies, a plaintiff may not recover in most tort theories when its damages are purely from harm to the product itself. Chemtrol, 537 N.E.2d at 635. HDM contends that it may recover damages from harm to the helicop ter because the helicopter is separate property from the landing gear. The district court properly rejected HDM’s argument by focusing on HDM’s underlying transaction. See Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925, 926 (5th Cir.1987); King v. Hilton-Davis, 855 F.2d 1047 (3rd Cir.1988); S.N.A, Inc. v. Hartzell Propeller, Inc., No. 95-1397, 1996 WL 283646 (E.D.Pa. May 29, 1996). When a purchaser negotiates the purchase of a product, and that product fails to meet expectations, the economic loss rule and Ohio’s product liability statute limit the purchaser to its contract remedies. If the purchaser were allowed to sue component manufacturers for the damage to the integrated product, the purchaser would be able to circumvent the economic loss rule by recovering in tort instead of being limited to contract remedies. As the United States Supreme Court noted in East River, almost every mechanical device has components. 476 U.S. at 867, 106 S.Ct. 2295. Indeed, a mechanical device, such as a helicopter, is merely many components assembled into a finished product. When the product malfunctions, the cause will almost always be a component. If the Ohio courts were to hold that a component is “other” property from" }, { "docid": "11222436", "title": "", "text": "12(b)(6) stage, the Court DENIES its motion to dismiss the Ohio Plaintiffs’ OCSPA claims on prior notice grounds. 2. Ohio Tortious Breach of Warranty Whirlpool does not move to dismiss Count II. 3. Ohio Negligent Design and Failure to Warn Defendant Whirlpool says that Ohio law bars the Ohio Plaintiffs’ claims for negligent design and failure to warn because they seek only economic damages. [Doc. 22 at 51.] Responding, the Ohio Plaintiffs say that courts applying Ohio law have limited this rule or at least refused to apply it to claims by individual consumers (as opposed to commercial buyers). [Doc. 36 at 46-49.] As a general rule, “a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624, 630 (1989). Thus, in the absence of injury to persons or damage to property, economic losses cannot be recovered in tort. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 653 N.E.2d 661, 667 (1995). In Ohio, however, the applicability of this economic loss rule depends on the complexity of the parties and the type tort claim at issue. See, e.g., HDM Flugservice GmbH v. Parker Hannifin Corp., 332 F.3d 1025, 1030-32 (6th Cir.2003). Although Ohio courts do distinguish between commercial entities and individual consumers, the foundational doctrinal distinction in the economic loss rule jurisprudence is whether the parties are in privity of contract. In cases of contractual privity, courts apply a strong version of the economic loss rule. See, e.g., Chemtrol, 537 N.E.2d at 631 (holding that contract between parties, not law of negligence, gave rise to duty and accordingly provided exclusive source of remedy). In contrast, when the parties are not in privity of contract, courts apply a more relaxed rule, allowing individual consumers to bring negligence claims for solely economic injuries. For example, discussing recovery for a product’s self-in flicted damage, the Supreme Court of Ohio noted, “[f] or an ordinary consumer, ie., one not" }, { "docid": "4824888", "title": "", "text": "be of much use in drawing the fine distinctions that sometimes must be made in order to make sense of the decided cases. The term “economic loss” requires further refinement. To begin with, “economic losses” may be divided into two basic categories: direct and indirect (or consequential). In a general sense, the term “direct economic losses ” refers to out-of-pocket expenditures by the plaintiff. More specifically, it encompasses the following situations: (i) Repair or Replacement Loss: i.e., this refers to the costs incurred in repairing the defective product, or in replacing a defective product that cannot be repaired; or (ii) Loss of Bargain: i.e., this refers to the diminution in the value of the defective product as measured by either the difference between the purchase price of the product and its salvage value in its damaged condition, or the difference between the value of the product to plaintiff had it been as represented by the seller and its actual fair market value in its defective condition (e.g., Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965)). Consequential economic losses, on the other hand, include all indirect losses sustained by a plaintiff. “Most often these consequential damages are business losses an owner incurs when he is deprived of the product’s use.” Mead Corp. v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 363 (N.D.Ohio 1979). Typical elements of consequential loss include expected profit on resale, anticipated profits lost because of the purchaser’s inability to make use of the defective chattel in his business, and legal liability incurred in reliance on the representation. Note, Economic Loss in Products Liability Jurisprudence, supra at 934. Thus, some commentators have referred to consequential economic losses as “expectation losses”: “for example, loss of use of the product in business or, perhaps, loss of a valuable deal.” Franklin, When Worlds Collide, supra note 18 at 981. Nonetheless, such losses may be incurred outside a business context. An example of such a loss would be a loss of wages suffered by an owner of a defective automobile who cannot procure substitute transportation to get to" }, { "docid": "104324", "title": "", "text": "caused personal injury or damage to other property of Chemtrol, Midland- Ross might be found to have breached its duty of care imposed by law, and recovery in negligence would accordingly lie. However, Chemtrol’s losses here were economic, i.e., additional expenses incurred because the Midland-Ross arch dryer did not perform as expected. Midland-Ross’ duty to provide a working arch dryer arose not under the law of negligence but rather under its contract with Chemtrol. Id. at 630-31. In response, Plaintiffs argue that Chem-trol is not dispositive because, there, the parties were two business entities (ie., the plaintiff was not a consumer); moreover, the parties were in contractual privity. According to Plaintiffs, there is a more relaxed rule where a consumer brings suit and is not in contractual privity with the defendant. See Opp’n at 31-32. Plaintiffs’ view has support. For example, in In re Porsche Cars N.A., Inc. Plastic Coolant Tubes Products Liability Litigation, 880 F.Supp.2d 801 (S.D.Ohio 2012), the court took note that, under Chemtrol, a commercial plaintiff in contractual privity with the defendant could not recover damages in tort for purely economic loss. See id. at 871. But in Chemtrol, the court “distinguished parties in privity from those not in privity, stating, ‘[f]or an ordinary consumer, i.e., one not in privity of contract with the seller or manufacturer against whom recovery is sought, an action in negligence may be an appropriate remedy to protect the consumer’s property interests.’ ” Id. The Porsche court went on to cite several Ohio district court opinions which “permitted individual consumers to bring negligence claims for purely economic loss against a manufacturer with whom they are not in privity of contract.” Id. at 872. As Ford points out in its reply brief, Judge Seeborg recently held to the contrary in Ford Tailgate. In Ford Tailgate, Judge Seeborg cited a 1965 Ohio Supreme Court decision, see Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965), for the proposition that, under Ohio law, “a plaintiff cannot recover in negligence for purely economic losses allegedly caused by a defective product when the" }, { "docid": "4824889", "title": "", "text": "132, 209 N.E.2d 583 (1965)). Consequential economic losses, on the other hand, include all indirect losses sustained by a plaintiff. “Most often these consequential damages are business losses an owner incurs when he is deprived of the product’s use.” Mead Corp. v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 363 (N.D.Ohio 1979). Typical elements of consequential loss include expected profit on resale, anticipated profits lost because of the purchaser’s inability to make use of the defective chattel in his business, and legal liability incurred in reliance on the representation. Note, Economic Loss in Products Liability Jurisprudence, supra at 934. Thus, some commentators have referred to consequential economic losses as “expectation losses”: “for example, loss of use of the product in business or, perhaps, loss of a valuable deal.” Franklin, When Worlds Collide, supra note 18 at 981. Nonetheless, such losses may be incurred outside a business context. An example of such a loss would be a loss of wages suffered by an owner of a defective automobile who cannot procure substitute transportation to get to work. Comment, The Vexing Problem, supra at 155. To summarize, therefore, a defective product can cause the following categories of harm: (1) PERSONAL INJURIES; (2) PROPERTY DAMAGE (defined as physical harm or damage to tangible property other than the defective product itself); (3) DIRECT ECONOMIC LOSSES (which may be further subdivided into repair and replacement losses, or loss of the benefit of the bargain); and (4) CONSEQUENTIAL ECONOMIC LOSSES. (c) The opening volley: Santor v. A & M Karagheusian The first case following Greerman v. Yuba Power Products to address the question of whether “economic losses” were recoverable under a strict tort liability theory was Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), and it answered the query in the affirmative. Santor involved a suit by an ordinary consumer against a remote manufacturer of defective carpeting. Plaintiff had purchased a quantity of the defendant-manufacturer’s nationally advertised carpeting from a local retail dealer for installation in his home. The retailer specified that the carpeting was “Grade # 1.” Soon after" }, { "docid": "104325", "title": "", "text": "could not recover damages in tort for purely economic loss. See id. at 871. But in Chemtrol, the court “distinguished parties in privity from those not in privity, stating, ‘[f]or an ordinary consumer, i.e., one not in privity of contract with the seller or manufacturer against whom recovery is sought, an action in negligence may be an appropriate remedy to protect the consumer’s property interests.’ ” Id. The Porsche court went on to cite several Ohio district court opinions which “permitted individual consumers to bring negligence claims for purely economic loss against a manufacturer with whom they are not in privity of contract.” Id. at 872. As Ford points out in its reply brief, Judge Seeborg recently held to the contrary in Ford Tailgate. In Ford Tailgate, Judge Seeborg cited a 1965 Ohio Supreme Court decision, see Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965), for the proposition that, under Ohio law, “a plaintiff cannot recover in negligence for purely economic losses allegedly caused by a defective product when the only damage is to the product itself.” Ford Tailgate, 2014 WL 1007066, at *5, 2014 U.S. Dist. LEXIS 32287, at *23; see also Inglis, 209 N.E.2d at 588 (agreeing with Dean Prosser’s comments that “ ‘the usual rule ... for negligence [is] there is no liability for mere pecuniary loss of a bargain’ ”). He acknowledged that “[a] more recent Ohio decision [ie., Chemtrol ] suggested in dicta that this rule applies only where the consumer was in privity with the manufacturer at the time of sale.” Ford Tailgate, 2014 WL 1007066, at *5-4, 2014 U.S. Dist. LEXIS 32287, at *23-24. But, he explained, “[t]he Ohio state courts ... continue to apply Inglis not Chemtrol in cases involving individual consumers.” See id. at *24-25 (citing three cases). While some federal district courts in Ohio followed Chemtrol, none “cite Inglis or discuss the continuing viability of that case. Because Inglis continues to be the rule in Ohio, defendant’s motion to dismiss plaintiffs’ Ohio negligence claim ... must be granted without leave to amend.” Id. at *25-26." }, { "docid": "7221866", "title": "", "text": "S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (“a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself’). That holding has been cited by this circuit and others to support a more general application of the doctrine. See, e.g., Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043 (6th Cir.1992); Hutton v. Deere & Co., 210 F.3d 389 (10th Cir.2000); King v. Hilton-Davis, 855 F.2d 1047 (3rd Cir.1988). In this diversity case between Parker and HDM, our task is to determine the most likely disposition of the issue under Ohio law. Bailey v. V&O Press Co., Inc., 770 F.2d 601, 604 (6th Cir.1985). Ohio developed its approach to the economic loss rule in two major stages. Ohio initially rejected the rule and allowed tort recovery for economic losses. See Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965); Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 326 N.E.2d 267 (1975). Then, in Chemtrol, the Ohio Supreme Court limited its previous holdings by applying the economic loss rule to parties in privity of contract, stating: a commercial buyer seeking recovery from the seller for economic losses resulting from damage to the defective product itself may maintain a contract action for breach of warranty under the Uniform Commercial Code; however, in the absence of injury to persons or damages to other property the commercial buyer may not recover for economic losses premised on tort theories of strict liability or negligence. 537 N.E.2d at 635. Thus, if the parties have a contractual relationship, they may not sue in strict liability or implied warranty for their economic damages, but instead must rely on the Uniform Commercial Code’s (“U.C.C.”) contractual remedies. The Chemtrol Court expressly declined to consider whether the economic loss rule should also apply to parties lacking privity, but cast doubt on previous Ohio Supreme Court holdings allowing such recovery: Accordingly, we also need not reconsider the question whether, absent privity of contract, a" }, { "docid": "15840846", "title": "", "text": "other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966). In Spring Motors Distributors, Inc. v. Ford Motor Company, 98 N.J. 555, 489 A.2d 660 (1985), the Court concluded, con sistent with the above explanation, that the gravaman of plaintiffs complaint, seeking recovery for repair, towing, and replacement parts for transmissions installed in commercial trucks, as well as for lost profits and a decrease in the value of the trucks, was for economic loss. A further distinction may be made between direct and indirect economic loss. Direct economic loss is the loss attributable to the decreased value of the product itself, measured by the difference between the actual value of the defective product and the value it would have had had it not been defective. Mead Corp. v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 363 (N.D.Ohio 1979). On the other hand, indirect economic loss is the consequential damage an owner of a defective product sustains, Mead Corp., Id. at 363, which includes damages for a loss in the bargain, as well as the cost of repair and replacement. Spring Motors Distributors, 98 N.J. at 561, 489 A.2d at 663. Generally speaking, tort principles, such as negligence, are better suited for resolving claims including unanticipated physical injury, particularly those arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damage that the parties have, or could have, addressed in their agreement. Id. at 579, 489 A.2d at 672. The gravaman of plaintiffs’ complaint in this case is that the defects in the Zimmer containment caused them to sustain costs for repair or costs to redesign and reconstruct the Zimmer Plant. Plaintiffs have not alleged any present personal injury or property damage. Nor do plaintiffs allege that any component parts, supplied by defendants, have caused any structural damage to other portions of the Zimmer Plant. Therefore, we conclude that the cost of repair or cost to" }, { "docid": "15840845", "title": "", "text": "does not necessitate this Court’s application of tort law in this action as a matter of public policy. Although both parties have eloquently argued their position, and the law of Ohio on the subject of products liability and economic loss is unsettled, we agree that Counts III through IX should be dismissed. Before we begin the difficult task of determining the types of losses for which Ohio law provides a remedy under the various tort theories of recovery and which claims presented in plaintiffs’ amended complaint arise out of contract, we must address the threshold issue of what type of loss have plaintiffs suffered? Since there is no allegation of personal injury in this case, we confine our discussion to situations which involve economic loss or damage to the defective product itself. One commentator, attempting to shed light upon the murky distinction between property damage and pure economic loss, has noted: [Wjhen the defect causes an accident ‘involving some violence or collision with external objects,’ the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966). In Spring Motors Distributors, Inc. v. Ford Motor Company, 98 N.J. 555, 489 A.2d 660 (1985), the Court concluded, con sistent with the above explanation, that the gravaman of plaintiffs complaint, seeking recovery for repair, towing, and replacement parts for transmissions installed in commercial trucks, as well as for lost profits and a decrease in the value of the trucks, was for economic loss. A further distinction may be made between direct and indirect economic loss. Direct economic loss is the loss attributable to the decreased value of the product itself, measured by the difference between the actual value of the defective product and the value it would have had had it not been defective. Mead Corp. v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 363 (N.D.Ohio 1979). On the other hand, indirect economic loss is the consequential damage an" }, { "docid": "7221869", "title": "", "text": "Co., 98 N.J. 555, 489 A.2d 660 (1985). But see Ohio Dep’t of Admin. Serv. v. Robert P. Madison Int’l, Inc., 138 Ohio App.3d 388, 741 N.E.2d 551 (2000) (holding that commercial purchasers should not be distinguished from non-commercial purchasers). Among commercial parties, the U.C.C. provides a comprehensive scheme for parties to recover their economic losses. See Spring Motors, 489 A.2d at 671. Permitting commercial parties to recover economic losses in tort would “allow a purchaser to reach back up the production and distribution chain, thereby disrupting the risk allocations that have been worked out in the transactions comprising the chain.” King, 855 F.2d at 1054. Moreover, policies underlying Ohio’s strict liability are forcing manufacturers to internalize and redistribute the cost of injuries because they are in the best position to do so and relieving average consumers of the “burden” of proving negligence. See Midwest Ford, 694 N.E.2d at 119. These policies do not favor allowing commercial parties to recover their economic losses. Cf. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845 (6th Cir.2002) (predicting that under Kentucky law, the economic loss rule would apply to commercial transactions regardless of privity). Application of the economic loss rule in the commercial transaction at issue here forces HDM to resort to contract law to recover its economic losses and thus gives the parties the benefit of their bargain. Accordingly, we affirm the district court’s conclusion that the economic loss doctrine applies to HDM’s claims for strict liability and implied warranty. C. Characterization of the Damage to the Helicopter Although the economic loss rule prevents commercial plaintiffs from recovering under most tort theories for purely economic damages, the rule does not prevent recovery for damage to property other than the defective product. See Chemtrol, 537 N.E.2d at 629. Similarly, Ohio’s product liability statute prohibits recovery for economic damages but allows recovery for damage to property other than the product itself. See LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64, 661 N.E.2d 714 (1996). Furthermore, in a negligence suit, damage to the defective product can be characterized as property" }, { "docid": "4824887", "title": "", "text": "loss.” Property damage may result from non-violent occurrences which result in physical harm to property other than the defective product itself. For example, consider the following situation: suppose the defendant manufactures a glue which it sells to plaintiff, and plaintiff uses the glue to cement rubber soles to leather shoe uppers. In this fact situation, a failure of the paste to properly adhere causes economic loss if it does not physically damage the shoes but merely renders them unsaleable; on the other hand, a defect in the paste which physically damages the shoe causes property loss. Id. See also, Karl’s Shoe Stores, Ltd. v. United Shoe Machinery Corporation, 145 F.Supp. 376 (D.Mass.1956) (case brief is found in Appendix II, infra). (b) Definition of “economic loss”: It would seem to follow by way of elimination, therefore, that “economic loss” in-eludes every kind of damage that results from deterioration, internal breakage, or other non-accidental causes not harmful to persons or other property. In a facile sense, that is true. However, the label is much too broad to be of much use in drawing the fine distinctions that sometimes must be made in order to make sense of the decided cases. The term “economic loss” requires further refinement. To begin with, “economic losses” may be divided into two basic categories: direct and indirect (or consequential). In a general sense, the term “direct economic losses ” refers to out-of-pocket expenditures by the plaintiff. More specifically, it encompasses the following situations: (i) Repair or Replacement Loss: i.e., this refers to the costs incurred in repairing the defective product, or in replacing a defective product that cannot be repaired; or (ii) Loss of Bargain: i.e., this refers to the diminution in the value of the defective product as measured by either the difference between the purchase price of the product and its salvage value in its damaged condition, or the difference between the value of the product to plaintiff had it been as represented by the seller and its actual fair market value in its defective condition (e.g., Inglis v. American Motors Corp., 3 Ohio St.2d" }, { "docid": "9606858", "title": "", "text": "either direct or consequential damages. A direct economic loss includes the loss of the benefit of the bargain, i.e., the difference between the value of the product as represented and the value in its defective condition. Consequential economic loss includes such indirect losses as lost profits. Spring Motors Distributors v. Ford Motors Co., 98 N.J. 555, 489 A.2d 660, 665 (1985). Or as the Third Circuit has said, \"The items most frequently sought as damages for unsuitable products are the reduction in value caused by the defect, cost of repair or replacement, and loss of profits.” Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165, 1169 (3d Cir.1981). In essence, economic losses are all pecuniary damages not resulting from physical harm or property damage. . Similarly, the court vacated the district court’s dismissal of plaintiffs’ claims for recovery of their increased costs incurred responding to the TMI incident. While not disagreeing with the general proposition that public expenditures made in responding to emergencies like fires are generally not recoverable in tort, the court said \"there might be specific information about the nature of the risks posed by such plants or the governmental problems involved in responding to nuclear incidents that plaintiffs could present to show that the nuclear industry differs from other industries in material respects and thus that the Pennsylvania courts would treat it differently. Because this issue is at the heart of plaintiffs' case, they should have been given the opportunity to present such evidence before summary judgment was granted.\" Id. at 121. . See also, Jones & Laughlin Steel v. Johns-Manville Sales, 626 F.2d 280, 288 (3d Cir.1980): Courts have adopted strict liability for cases involving injury to persons or other property in order to place the cost of such injuries on the manufacturer — the party best able to distribute the costs. Inasmuch as the defective product may well injure persons who have not purchased the product or in any way dealt with the manufacturer, there is no price mechanism by which to insure such persons against the risk of loss. Economic loss “which results" }, { "docid": "7221873", "title": "", "text": "the integrated product, it would allow purchasers to circumvent the economic loss rule in almost every case. Preventing a commercial buyer from recovering the damage to the product from the component manufacturer in tort comports with the policy behind prohibiting a purchaser recovering in tort for the product itself. 2. Negligence Claim In a negligence suit, Ohio law recognizes that damage to the product itself can be either economic damage or property damage. Chemtrol, 537 N.E.2d at 629. The Ohio Supreme Court has observed: For an ordinary consumer, i.e., one not in privity of contract with the seller or manufacturer against whom recovery is sought, an action in negligence may be an appropriate remedy to protect the consumer’s property interests. However, where the buyer and seller are in privity of contract, and they have negotiated that contract from relatively equal bargaining positions, the parties are able to allocate the risk of all loss, including loss of the subject product itself, between themselves. Id. at 631. HDM argues on appeal that Chemtrol supports its position that damage to the landing gear should be recoverable in tort. Since it is not in privity with Parker, HDM claims that the circumstances of its case “are exactly the type that the Ohio Supreme Court in Chemtrol Adhesives envisioned would be recoverable under a negligence claim involving a defective product.” HDM overstates the similarities between this case and that described in Chemtrol. Even though HDM did not negotiate with Parker for risk of loss, it did negotiate with Bell, and the agreement with Bell included the landing gear. HDM was in a position to allocate the risk of loss of the landing gear, unlike a consumer purchasing a product from a store, who does not negotiate warranties or allocate the risk of loss. Therefore, as to HDM’s negligence claim, the harm to the landing gear itself is economic harm, not property damage, so the claim is barred. D. Negligent Misrepresentation HDM has been inconsistent in articulating the substance of its claim for negligent misrepresentation. Its complaint included the following allegations: 43. Parker made material representations" }, { "docid": "7221870", "title": "", "text": "F.3d 845 (6th Cir.2002) (predicting that under Kentucky law, the economic loss rule would apply to commercial transactions regardless of privity). Application of the economic loss rule in the commercial transaction at issue here forces HDM to resort to contract law to recover its economic losses and thus gives the parties the benefit of their bargain. Accordingly, we affirm the district court’s conclusion that the economic loss doctrine applies to HDM’s claims for strict liability and implied warranty. C. Characterization of the Damage to the Helicopter Although the economic loss rule prevents commercial plaintiffs from recovering under most tort theories for purely economic damages, the rule does not prevent recovery for damage to property other than the defective product. See Chemtrol, 537 N.E.2d at 629. Similarly, Ohio’s product liability statute prohibits recovery for economic damages but allows recovery for damage to property other than the product itself. See LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64, 661 N.E.2d 714 (1996). Furthermore, in a negligence suit, damage to the defective product can be characterized as property damage or economic damage, and purchasers can recover damage to the defective product if it is characterized as property damage. 1. Statutory Product Liability Claim and Tort Claims Ohio’s product liability statute only permits recovery for “harm,” Ohio Rev.Code § 2307.73(A)(2), defined as “death, physical injury to person, serious emotional distress, or physical damage to property other than the product involved. Economic loss is not ‘harm’.” Ohio Rev.Code § 2307.71(G). Economic loss is defined as “direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the product involved and nonphysical damage to property other than that product. Harm is not ‘economic loss’.” Ohio Rev.Code § 2307.71(B). Furthermore, when the economic loss rule applies, a plaintiff may not recover in most tort theories when its damages are purely from harm to the product itself. Chemtrol, 537 N.E.2d at 635. HDM contends that it may recover damages from harm to the helicop ter because the helicopter is separate property from the landing gear. The district court properly rejected HDM’s argument by focusing on HDM’s" }, { "docid": "13074995", "title": "", "text": "N.E.2d 1099 (1987). Furthermore, there is no private right of action for a violation of § 1329.01. Id. Defendants’ motion for summary judgment must be granted on this portion of Plaintiffs claim. 8. Summary Defendants’ motions for summary judgment on Count III must be denied as to Plaintiffs claims that Defendant Clemons falsely represented that the boat would go faster than 40 mph, and Defendant Bayliner falsely represented that the boat was unsurpassed for trouble-free operation. It must be granted on the remainder of Plaintiffs claims under the OCSPA. D. Count IV: Products Liability Plaintiff next brings a products liability claim against all defendants. Defendants have moved for summary judgment on the ground that Ohio law permits a plaintiff to bring a products liability claim only for personal injury or damage caused by a defective product to other property, and not for damage to the product itself. See Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 44-45, 537 N.E.2d 624 (1989) (where there is no accident, and no physical damage, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing it, the courts have adhered to the rule ... that purely economic interests are not entitled to protection against mere negligence, and so have denied the recovery.) Plaintiff has stipulated that he cannot bring a products liability claim against Clemons, because he is in contractual privity with Clemons, but argues that he ought to be able to bring a claim against manufacturers Bayliner and Brunswick, because he is not in privity with them. He cites to no statutory or case law supporting his claim that he is entitled to bring a products liability action against the manufacturer of an allegedly defective product that has caused no damage to anything except itself, merely because he is not in privity of contract with the manufacturer. This Court is aware of no such law, and Plaintiffs argument flies in the face of blackletter products liability law. Defendants’ motions for summary judgment must be granted" }, { "docid": "7221863", "title": "", "text": "granted summary judgment for Parker on all of HDM’s causes of action. Under each cause of action, HDM sought recovery for the cost of repairs to the helicopter, the expense of leasing a replacement helicopter, the costs of replacement and spare parts, the emergency response expenses associated with the accident, the expenses associated with repairing the wheeled landing gear assemblies on HDM’s other Bell 412 helicopters, and lost profits. The district court decided that Ohio courts would apply the economic loss doctrine, which prevents parties from recovering purely economic loss in most tort actions, to HDM’s claims for strict liability, and implied warranty. The court also ruled that HDM’s damages were economic damages, which led the court to summarily dismiss HDM’s strict liability, implied warranty, negligence, and statutory product liability claims. Finally, the court held that HDM failed to produce evidence sufficient to establish its negligent misrepresentation or express warranty claims. HDM appeals each of these conclusions. III. A. Standard of Review The Court reviews a district court’s grant of summary judgment de novo, using the same standard employed by the district court. Herman Miller, Inc. v. Palazzetbi Imps. & Exps., Inc., 270 F.3d 298, 307-08 (6th Cir.2001). Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). B. Ohio’s Application of the Economic Loss Rule to Strict Liability and Implied Warranty Causes of Action Generally, damages may be characterized as either personal injury, property damage, or economic damage. “Personal injury” is, of course, self-explanatory. “Property damage” generally connotes either damages to the defective product itself or damages to other property. “Economic loss” is described as either direct or indirect. “Direct” economic loss includes the loss attributable to the decreased value of the product itself. Generally, this type of damages encompasses “the difference between the actual value of the defective product and the value it would have had had it not been defective.” It may also be described as “the loss of the benefit of the bargain.... ”" }, { "docid": "104322", "title": "", "text": "from the economic loss rule because the rule is judicial, not legislative, and must give way to specific legislative policy pronouncement allowing damages for economic loss[;] [i]n other words, by enacting a remedy for economic losses suffered by reason of an act deemed wrongful by the statute, the legislature has effectively preempted the economic loss rule for those cases covered by the act’ ”). In any event, the economic loss rule does not apply to Plaintiffs’ claim of fraudulent concealment. 4. Ohio Finally, Ford contends that the Ohio Plaintiffs (Mr. ZuchowsM) claim for negligence is barred by the economic loss doctrine. In support of this position, Ford cites Chemtrol Adhesives, Inc. v. American Manufacturers Mutual Insurance Co., 42 Ohio St.3d 40, 537 N.E.2d 624 (1989). There, the Ohio Supreme Court took note of the “general rule ... that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Id. at 630. The reason for denying recovery in negligence for purely economic loss lies not in a failure to find “negligent” conduct by the manufacturer, nor in a lack of proximate relationship between that conduct and the consumer’s injury. Rather, the key factor is the extent, and more important, the source, of the duty owed by the manufacturer to the eon-sumer. In negligence, the law imposes upon the manufacturer of a product the duty of reasonable care. That duty protects the consumer from physical injury, whether to person or property. However, the law of negligence does not extend the manufacturer’s duty so far as to protect the consumer’s economic expectations, for such protection would arise not under the law but rather solely by agreement between the parties. “[W]hen the promisee’s injury consists merely of the loss of his bargain, no tort claim arises because the duty of the promisor to fulfill the term of the bargain arises only from the contract.” In the instant case, Midland-Ross provided Chemtrol with an arch dryer pursuant to the contract between them. If the defect in the arch dryer had" }, { "docid": "6683717", "title": "", "text": "case in which the court held that the economic loss doctrine barred the plaintiffs' negligence and strict liability claims without holding the same with respect to the misrepresentation claims. It does not appear, however, that the defendants raised the issue. The case also predates Badger Phannacal. We note that the Supreme Court of Wisconsin has held open the possibility that the economic loss doctrine precludes misrepresentation claims: The defendant argues that the plaintiffs' claims in nuisance, deceit, strict liability for misrepresentation, and negligent misrepresentation are barred because the plaintiffs have not suffered physical harm to property. Because we conclude that the plaintiffs have alleged physical harm to property rather than solely economic loss, the defendant’s argument has no merit. Northridge Co., 471 N.W.2d at 187 n. 15. .The parties agree that Ohio law applies. . Cf. Lawyers Cooperative Publishing Co. v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969, 972 (1992) (noting that commercial buyer may not use tort theories to recover economic losses in absence of personal injury or damage to other property); Floor Craft Floor Covering, Inc. v. Parma Community Gen. Hosp. Ass'n, 54 Ohio St.3d 1, 560 N.E.2d 206, 208 (1990) (\"[T]ort liability may not be imposed for purely economic damages.\"); Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624, 630-35 (1989) (holding that commercial buyer seeking to recover economic loss from seller can maintain contract action for breach of warranty under U.C.C., but not a strict liability or negligence action). . See Peoples’ Democratic Republic of Yemen v. Goodpasture, Inc., 782 F.2d 346, 351-52 (2d Cir. 1986); see also Slemmons v. Ciba-Geigy Corp., 57 Ohio App.2d 43, 385 N.E.2d 298, 307-08 (1978)." }, { "docid": "7221865", "title": "", "text": "“Indirect” economic loss includes the consequential losses sustained by the purchaser of the defective product, which may include the value of production time lost and the resulting lost profits. Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624, 629 (1989) (internal citations omitted). The economic loss rule prohibits purchasers of products from recovering purely economic damages under most tort theories. See Steven C. Tourek et al., Bucking the “Trend”: the Uniform Commercial Code, the Economic Loss Doctrine, and Common Law Causes of Action for Fraud and Misrepresentation, 84 Iowa L. Rev. 875, 875-76 (1999); Am.Jur.2d § 1912. The economic loss rule, in some form, is the rule in the majority of jurisdictions. See Christopher Scott D’Angelo, The Economic Loss Doctrine: Saving Contract Warranty Law From Drowning in a Sea of Torts, 26 U. Tol. L. Rev. 591 (1995) (including an appendix charting the adoption of the economic loss rule by state). The United States Supreme Court has expressly adopted the economic'loss rule in admiralty cases. See East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (“a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself’). That holding has been cited by this circuit and others to support a more general application of the doctrine. See, e.g., Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043 (6th Cir.1992); Hutton v. Deere & Co., 210 F.3d 389 (10th Cir.2000); King v. Hilton-Davis, 855 F.2d 1047 (3rd Cir.1988). In this diversity case between Parker and HDM, our task is to determine the most likely disposition of the issue under Ohio law. Bailey v. V&O Press Co., Inc., 770 F.2d 601, 604 (6th Cir.1985). Ohio developed its approach to the economic loss rule in two major stages. Ohio initially rejected the rule and allowed tort recovery for economic losses. See Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965); Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88," }, { "docid": "7221864", "title": "", "text": "the same standard employed by the district court. Herman Miller, Inc. v. Palazzetbi Imps. & Exps., Inc., 270 F.3d 298, 307-08 (6th Cir.2001). Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). B. Ohio’s Application of the Economic Loss Rule to Strict Liability and Implied Warranty Causes of Action Generally, damages may be characterized as either personal injury, property damage, or economic damage. “Personal injury” is, of course, self-explanatory. “Property damage” generally connotes either damages to the defective product itself or damages to other property. “Economic loss” is described as either direct or indirect. “Direct” economic loss includes the loss attributable to the decreased value of the product itself. Generally, this type of damages encompasses “the difference between the actual value of the defective product and the value it would have had had it not been defective.” It may also be described as “the loss of the benefit of the bargain.... ” “Indirect” economic loss includes the consequential losses sustained by the purchaser of the defective product, which may include the value of production time lost and the resulting lost profits. Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624, 629 (1989) (internal citations omitted). The economic loss rule prohibits purchasers of products from recovering purely economic damages under most tort theories. See Steven C. Tourek et al., Bucking the “Trend”: the Uniform Commercial Code, the Economic Loss Doctrine, and Common Law Causes of Action for Fraud and Misrepresentation, 84 Iowa L. Rev. 875, 875-76 (1999); Am.Jur.2d § 1912. The economic loss rule, in some form, is the rule in the majority of jurisdictions. See Christopher Scott D’Angelo, The Economic Loss Doctrine: Saving Contract Warranty Law From Drowning in a Sea of Torts, 26 U. Tol. L. Rev. 591 (1995) (including an appendix charting the adoption of the economic loss rule by state). The United States Supreme Court has expressly adopted the economic'loss rule in admiralty cases. See East River" } ]

[ { "docid": "20064409", "title": "", "text": "U.S. 567, 574, 108 S.Ct. 1975, 1980, 100 L.Ed.2d 565 (1988) (applying the objective “reasonable person” test to the facts of that ease). Thus, a court’s conclusion that no seizure occurred is a legal conclusion. Justice Marshall summarized this standard in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), when he observed, “because the issue whether a seizure has occurred in any given factual setting is a question of law, see ... Mendenhall, 446 U.S. 544, 554-555 [100 S.Ct. at 1877-1878] ... nothing prevents this Court from deciding on its own whether a seizure occurred based on all of the facts of this case....” Id. at 446, 111 S.Ct. at 2392 (J. Marshall, dissenting) (citation omitted) (emphasis in original); see Mendenhall, 446 U.S. at 551 n. 5, 100 S.Ct. at 1875 n. 5 (stating that “the correctness of the legal characterization of the facts appearing in the record is a matter for this Court to determine.”) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797 (1968)). Our understanding of the standard of review for seizure determinations has been articulated by other panels of this Circuit in eases both prior to and following Taylor. United States v. Coleman, 628 F.2d 961, 963 (6th Cir.1980) (holding that the district court’s legal conclusion that defendant’s personal property was seized by the police was error because the district court clearly erred in the underlying factual findings); United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.) (stating “[a] district court’s factual findings made in consideration of a motion to suppress evidence are to be upheld unless they are clearly erroneous.... However, the district court’s conclusions of law are subject to de novo review on appeal. See Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989). ”), cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992); United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993) (stating that a district court’s findings upon review of" } ]

[ { "docid": "19940295", "title": "", "text": "316 (7th Cir.1989)(same); United States v. Sholo-la, 124 F.3d 803, 811 (7th Cir.1997)(calling into doubt the appropriateness of review for \"clear error”). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(same); United States v. McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991)(en banc)(7-3 decision)(same); United States v. Buchanon, 72 F.3d 1217, 1222 (6th Cir.1995)(same). . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Michigan v. Chestemut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). . Up to seven officers made an appearance at Ms. Marsh’s residence that morning. However, before contraband was found in Tubbs's vehicle, there were no more than four officers present at any particular point in time." }, { "docid": "415158", "title": "", "text": "follow Tom were unjustified, they did not constitute a “seizure” and, as a result, are not subject to any Fourth Amendment scrutiny. Voida’s initial questioning of Tom was “a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all.” United States v. High, 921 F.2d 112, 115 (7th Cir.1990); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Because Tom was completely free to leave this encounter, High, 921 F.2d at 115, Florida v. Bostick, — U.S. —, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), the Fourth Amendment was not implicated. But, the plaintiff argues, if Tom was free to leave this voluntary non-coercive encounter, then how could Voida have been justified in following Tom and telling him to “wait a second”? Appellant’s Br. at 19. Likewise when Tom threw down his bicycle and ran away, how could Voida have been justified in ordering Tom to stop and in pursuing him? The answer is that Voida did not need any justification for following Tom and ordering him to stop; those actions do not constitute a “seizure” under the Fourth Amendment. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen may we conclude that a ‘seizure’ has occurred.” Terry, 88 S.Ct. at 1879 n. 16. This test is objective; “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (footnote omitted); see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). In California v. Hodari D., — U.S. —, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), the Court held that the objective test of Mendenhall states a necessary, but not a sufficient, condition for seizure. A seizure requires not only that the" }, { "docid": "4850026", "title": "", "text": "that Officers Vass and Pappas never seized Williams. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Michigan v. Chesternut, 486 U.S. 567, 573-74, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (stating that an individual is seized if “a reasonable person would have believed that he was not free to leave” and noting that the test is an objective one (internal quotation marks omitted)). In addition, an individual must actually submit to the show of authority to be seized within the Fourth Amendment. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); United States v. Jones, 562 F.3d 768, 774-75 (6th Cir.2009). For this reason, “a consensual encounter does not amount to a seizure.” United States v. Campbell, 486 F.3d 949, 954 (6th Cir.2007). Officers do not seize people “merely by approaching individuals on the street or in other public places and putting questions to them.” United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). That said, “words alone may be enough to make a reasonable person feel that he would not be free to leave.” United States v. Richardson, 385 F.3d 625, 629 (6th Cir.2004). We consider the following factors as evidence of a seizure: “ ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the" }, { "docid": "19940281", "title": "", "text": "or in the alternative, when Officer Clampitt discovered the illegal shotgun in the storage building. The Government does not dispute the district court’s determination that the officers lacked reasonable suspicion for the second detention. Rather, the Government contends that Mask’s continued presence at Ms. Marsh’s residence was voluntary, and did not ripen into a second seizure that triggered Fourth Amendment protections until Mask was patted down by Sergeant Gage (at which point, reasonable suspicion was again indisputably present). The law regarding the seizure of persons is well developed. Not all encounters between law enforcement officers and citizens are seizures for purposes of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A voluntary encounter between an officer and a citizen may ripen into a seizure, triggering the Fourth Amendment and requiring officers to be able to articulate reasonable suspicion or probable cause, “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of [the] citizen.” Id. This principle has since been commuted into a test first proposed by Justice Stewart in United States v. Mendenhall, and eventually adopted by the full Court in INS v. Delgado. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The test provides that an individual has been seized for Fourth Amendment purposes “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2111, 153 L.Ed.2d 242 (2002). This “reasonable person” standard is objective, and is concerned not with the citizen’s subjective perception or the officers’ subjective intent, but only with what" }, { "docid": "2337088", "title": "", "text": "‘totality of the circumstances’ surrounding the encounter.” United States v. Jerez, 108 F.3d 684, 690 (7th Cir.1997) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). For an understanding of this standard, we begin with Justice Stewart’s opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and the plurality opinion of the Supreme Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). In Mendenhall, Justice Stewart noted that physical contact with the police was but one of several “circumstances that might indicate a seizure.” See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Additional circumstances include the number and threatening presence of officers, the display of a weapon and the police officers’ language and tone of voice suggesting compulsion. Id. at 554-55, 100 S.Ct. 1870. In Royer, the Court determined that a seizure had occurred in an airport when the officers took a man’s plane ticket and license, thus preventing him from walking away. See 460 U.S. at 504-06, 103 S.Ct. 1319. In both cases, the focus was squarely on whether a reasonable person would have felt free to leave. Later, in I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Court ruled that immigration “sweeps” in workplaces, whereby government agents asked questions of workers while other agents stood at the doors, did not constitute a Fourth Amendment seizure. The Court explained that “[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.” Id. at 216, 104 S.Ct. 1758. Notably, the agents had tapped one of the workers on the shoulder and asked her questions; the Court found that no seizure had occurred. Id. at 220, 104 S.Ct. 1758. In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), while holding that “there can be no question" }, { "docid": "23010497", "title": "", "text": "(2000). But the Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory. See, e.g., Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 552-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). These requests are proper without regard to the absence of reasonable suspicion, the Court made clear in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), because “mere police questioning does not constitute a seizure.” As a result, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Ibid., quoting from Royer, 460 U.S. at 497, 103 S.Ct. 1319. See also California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (defining “seizure” as “taking possession,” a category that does not comprise questioning); Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen’ ”) (quoting from Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Most of these decisions concern questions asked of persons not under arrest (though often as a practical matter not free to walk away, see Bostick and Delgado). Are things different when the suspect is in formal custody? It is difficult to see why custody should turn an inquiry into a “seizure.” Posing a question still does not meet the" }, { "docid": "13386381", "title": "", "text": "of the Fourth Amendment. In addition, Dixon contends that the government failed to properly establish Mike’s qualifications. II. DISCUSSION A. Seizure Issues 1. Timing of the Seizure Dixon first contends that he was “seized” prior to his detention. The district court determined that Dixon was not seized until he was detained to wait for the arrival of the drug dog. Whether a seizure occurs is a question of law which we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). Not every contact between law enforcement officers and citizens constitutes a Fourth Amendment “seizure.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968). For example, a seizure does not ordinarily occur when a police officer approaches an individual and asks for identification or asks a few ques tions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). A seizure occurs only if, considering all of the circumstances, a reasonable person would believe that he is not free to leave. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). In addition, for a seizure to occur, there must be either a physical application of force by the officer or a submission to the officer’s assertion of authority. California v. Hodari D., 499 U.S. 621, 626-29, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991); United States v. Thompkins, 998 F.2d 629, 633 (8th Cir.1993). Dixon concedes that his encounter with Carrill was, initially, consensual. The encounter occurred in a public area. Dixon conversed only with Carrill. There is no indication that the detectives used outright coercion or even subtle threats. They did not, for example, surround Dixon or display their weapons. Although admitting the consensual nature of the encounter, Dixon argues that the encounter ripened into a seizure when Carrill reidentified himself as a law enforcement officer and began questioning Dixon about drugs. We have specifically held that redisplaying a badge and" }, { "docid": "6539930", "title": "", "text": "a ‘stop’ as soon as the police officers drove up to the gas station ... to investigate whether the four African-American men they saw standing and talking included the [attempted UUV suspect].” Supplemental Findings at 2. II. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. As an exception to the Fourth Amendment’s warrant requirement, officers may conduct a brief investigative “Terry stop” so long as they have “reasonable, articula-ble suspicion” of criminal conduct. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 678, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Terry stops require only that officers have a “minimal level of objective justification,” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)—a standard significantly lower than the probable cause required for a warrant. In this case, we face two distinct issues: when the stop occurred and whether the officers had reasonable suspicion at that time. Both are questions of law that we consider de novo. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990) (“[T]he [Supreme] Court has never deferred to the trier of fact regarding the question of seizure.”); United States v. Christian, 187 F.3d 663, 666 (D.C.Cir.1999) (applying de novo review to district court’s determination of reasonable suspicion). As to the first issue, a stop takes place “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,” Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868, or, put differently, “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (alteration in original) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497" }, { "docid": "17437260", "title": "", "text": "circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “[T]he protection against unreasonable seizures also extends to ‘seizures that involve only a brief detention short of traditional arrest.’ ” I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). The controlling test is “whether the officer’s words and actions would have conveyed that [the person was not free to leave] to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Mere police questioning does not constitute seizure under Fourth Amendment. Muehler v. Mena, 544 U.S. 93, 100, 125 S.Ct. 1465, 161 L.Ed.2d 299 (U.S.2005). Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and ask for consent to search, provided they do not induce cooperation by coercive means. United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Illinois v. Lidster, 540 U.S. 419, 425, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Factors to be considered in determining whether the consent was voluntary include characteristics of the person consenting (age, maturity, education, intelligence and experience), and the conditions under which the consent to search were given, including the officer’s conduct, the number of officers present, and the duration, location, and time of the encounter. United States v. Hernandez, 76 F.Supp.2d 578, 581 (E.D.Pa.1999) (citing United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.1996)). Kraft argues that the facts demonstrate a clear" }, { "docid": "14498118", "title": "", "text": "reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). “As long as the person to whom questions are put remains, free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Accordingly, “[a]n arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (emphasis in original). Examples of what might constitute a seizure include “the threatening presence of several officers, the display of weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In this case, twenty FBI agents surrounded him on the street and refused him permission to return to his own home, call his brother, or drive to the FBI office. The nature of these allegations raise a question as to whether “[a]s a practical matter, [he] was under arrest.” Florida v. Royer, 460 U.S. 491, 503, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A hearing is necessary to examine the totality of circumstances and determine whether and when he was arrested. Were the Agents Given Involuntarily? determining a dant’s statements to the police or other government agents were involuntary, courts must look at the totality of the circumstances surrounding the interrogation. See United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir.1995) (“In mak ing this review, we considered, as we are required, to do, ‘the totality of all the surrounding circumstances.’ ” (citation omitted)). Courts should consider the following factors: “the" }, { "docid": "23203755", "title": "", "text": "F.2d 932, 937 (4th Cir.), cert. denied, — U.S. -, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990); United States v. Dunigan, 884 F.2d 1010, 1014 (7th Cir.1989); United States v. Archer, 840 F.2d 567, 571 (8th Cir.), cert. denied, 488 U.S. 941, 109 S.Ct. 365, 102 L.Ed.2d 354 (1988); United States v. Collis, 699 F.2d 832, 835 (6th Cir.), cert. denied, 462 U.S. 1119, 103 S.Ct. 3088, 77 L.Ed.2d 1349 (1983). Two will review the determination de novo. See United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991); United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.), cert. denied, - U.S. -, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). One has split on the proper standard. Compare Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir.1987) (de novo review) with United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986) (clearly erroneous review). . We recognize that law enforcement officers may seize a person by means of a \"show of authority” without exerting any physical force. See California v. Hodari D., - U.S. -, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991) (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 1, 20 L.Ed.2d 889 (1968)). Superficially, when Agents Urbina and Compton displayed their badges and identified themselves as federal officers, they \"showed” their \"authority.” As a legal term of art, however, \"show of authority\" has the meaning given it by Chesternut: there is a show of authority by an officer if, but only if, a reasonable person believes he is not free to leave. In Hodari, the Supreme Court considered whether, \"with respect to a show of authority ..., a seizure occurs even though the subject does not yield,” and held that it does not. Ill S.Ct. at 1547. Hodari assumed there was a show of authority, whereas in this case, we have concluded no such “show of authority” was made." }, { "docid": "5623566", "title": "", "text": "Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041, One reason, of course, is that in cases in which a person merely pauses voluntarily to answer a gendarme’s questions, the detention customarily is not viewed as a seizure at all. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); cf. INS v. Delgado, 466 U.S. 210, 218, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (holding that factory workers were not seized when INS agents questioned them with their employer’s consent). However, when an encounter takes some appreciable time or moves to a private space (say, an interrogation room or a dwelling), the justification for the detention becomes an issue because the individual may no longer understand his participation to be voluntary. See, e.g., Mendenhall, 446 U.S. at 557-58, 100 S.Ct. 1870; Kimball, 25 F.3d at 8; United States v. Berry, 670 F.2d 583, 598, 604 (5th Cir.1982) (en banc). This furnishes an apt analogy for our case. At least for 'the interval immediately after an officer bent on making a TIPS stop flashes his lights in a show of authority, neither the driver nor the passenger knows why their journey is being interrupted or has much reason to think that stopping is optional. The suspense of those early moments necessarily impinges on Fourth Amendment interests. See Sitz, 496 U.S. at 452-53, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074. Put another way, because the officer’s initiative “communicate[s] to a reasonable person that he [is] not at liberty to ignore the police presence and go about his business,” a seizure occurs. Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); accord Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, Woodrum was seized in the course of the TIPS stop. The government concedes the fact of the seizure, but responds that the taxi owner’s consent to TIPS authorized it. The government," }, { "docid": "16203872", "title": "", "text": "subsequent seizure of the luggage. See id. at 1530 (reasonable suspicion resulting from defendant’s untruthful answers proper only if questioning of defendant was voluntary, consensual encounter); United States v. Santillanes, 848 F.2d 1103, 1108 (10th Cir.1988) (statement made by defendant during illegal detention could not be considered in determining reasonable suspicion for further detention). See also Florida v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 1329-30, 75 L.Ed.2d 229 (1983) (plurality opinion) (defendant’s consent to search luggage tainted by illegal detention and therefore ineffective to justify search). Accordingly, we initially address the Ward issue and find it to be dispositive of Defendant’s appeal. III. In denying Defendant’s suppression motion, the district court concluded that Defendant was not seized during either encounter prior to his arrest and that he voluntarily provided the information requested by Agent Small. While we review the district court’s factual finding of whether Defendant was seized under the clearly erroneous standard, United States v. Werking, 915 F.2d 1404, 1409 (10th Cir.1990), “the ultimate issue of whether a seizure occurred is a question of law.” United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992) (citations omitted). Here, the facts are undisputed; accordingly, our review is de novo. See United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991). But see United States v. Silva, 957 F.2d 157, 158 (5th Cir.), petition for cert. filed, No. 92-5259 (U.S. July 21, 1992); United States v. Wilson, 895 F.2d 168, 171 (4th Cir.1990); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). The Supreme Court has delineated three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment, see, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1979-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984); (2)" }, { "docid": "23090906", "title": "", "text": "Supp. 1992), is not dispositive on the issue. See Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2754-55, 65 L.Ed.2d 890 (1980) (per curiam) (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.”). Rather, the government argues that Officer LeMasters’ conduct must be judged under a reasonableness standard, and her conduct was reasonable in light of the circumstances. Because the government’s challenge is limited to the proper legal standard and the reasonableness of the officer’s conduct, our review is de novo. See United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) (“[UJltimate determinations of reasonableness under the Fourth Amendment, and other questions of law, are reviewed de novo.”). A. “[T]he Fourth Amendment’s protection against ‘unreasonable ... seizures’ includes seizure of the person.” California v. Hodari D., — U.S. -,-, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991) (citation omitted). Of course, not all police-citizen encounters implicate the Fourth Amendment. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984). See generally United States v. Bloom, 975 F.2d 1447, 1450-56 (10th Cir.1992). “[MJere police questioning does not constitute a seizure.” Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, “ ‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place_’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, a person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id. at -, 111 S.Ct. at 2389. Applying this standard to the case before us, we have little doubt that both King and Burdex were seized when Officer LeMasters ordered King at gunpoint to place his hands on the steering wheel or else be" }, { "docid": "23402659", "title": "", "text": "citizenry. are Fourth Amendment seizures. In Terry v. Ohio, the Supreme Court noted, “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The appellants claim that the officers’ knocking on their motel room’s door and window and shining a flashlight through the room’s window amounted to such a restraint on their liberty. The Supreme Court has formulated two approaches for determining whether a person has been “seized” within the meaning of the Fourth Amendment. The first of these approaches is employed when the police approach an individual in a place such as an airport, train terminal or on the street. As a general matter, law enforcement officers may approach a willing individual in a public place and ask that person questions without violating the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). In these situations, a “seizure” of the person occurs only if a reasonable person in similar circumstances would not have felt “free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The second approach articulated by the Supreme Court applies when the police approach an individual in a confined space such as a bus. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave”" }, { "docid": "19940282", "title": "", "text": "principle has since been commuted into a test first proposed by Justice Stewart in United States v. Mendenhall, and eventually adopted by the full Court in INS v. Delgado. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The test provides that an individual has been seized for Fourth Amendment purposes “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2111, 153 L.Ed.2d 242 (2002). This “reasonable person” standard is objective, and is concerned not with the citizen’s subjective perception or the officers’ subjective intent, but only with what the officers’ words and actions would have conveyed to a reasonable and innocent person. Chesternut, 486 U.S. at 574, 576 n. 7, 108 S.Ct. 1975; Bostick, 501 U.S. at 438, 111 S.Ct. 2382. To the extent that the district court’s determination that Mask was seized when Clampitt arrived was affected by the fact that Clampitt came to the scene with the intention to “detain these guys” and investigate Gage’s hunch that Tubbs was involved in drug trafficking, it was influenced by an incorrect view of the law. See Mem. Opinion and Order of March 26, 2002 at p. 6. The officers’ objective conduct, not their subject intentions or private conversations, is relevant to the seizure determination. Chesternut, 486 U.S. at 576 n. 7, 108 S.Ct. 1975 (“[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted”). Because the district court did not limit its consideration of the evidence to officer conduct and" }, { "docid": "19940294", "title": "", "text": "clear error and \"ultimate” legal conclusions regarding the constitutionality of law enforcement actions are reviewed de novo, without classifying seizure determinations as one or the other); United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001)(same); United States v. Cooper, 43 F.3d 140, 145 (5th Cir.l995)(same); United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993)(same); United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992)(same). In a footnote, the panel in United States v. Boone observed that the two different approaches are evidence of an intra-circuit split. 67 F.3d 76, 77 n. 1 (5th Cir.1995). However, the general statement that \"ultimate conclusions” on Fourth Amendment issues are subject to de novo review is entirely consistent with Valdiosera-Godinez, which held that a seizure determination is a finding of fact. 932 F.2d at 1098 n. 1. . The Fourth, and nominally Seventh Circuits, share our position. See United States v. Gray, 883 F.2d 320 (4th Cir.1989)(holding that seizure determinations are questions of fact subject to clearly erroneous review on appeal); United States v. Teslim, 869 F.2d 316 (7th Cir.1989)(same); United States v. Sholo-la, 124 F.3d 803, 811 (7th Cir.1997)(calling into doubt the appropriateness of review for \"clear error”). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(same); United States v. McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991)(en banc)(7-3 decision)(same); United States v. Buchanon, 72 F.3d 1217, 1222 (6th Cir.1995)(same). . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Michigan v. Chestemut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d" }, { "docid": "20125486", "title": "", "text": "occurred.’ ” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). “Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870. Yet “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In fact, “[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, [and] ask for identification” without running afoul of the Fourth Amendment’s prohibitions. Id. at 201, 122 S.Ct. 2105. Whether an encounter with a police officer constitutes a search and/or seizure under the Fourth Amendment requires consideration of “all the circumstances surrounding the encounter.” Bostick, 501 U.S. at 439, 111 S.Ct. 2382. Any inquiry into an alleged seizure must begin by determining when the seizure occurred. See United States v. Torres, 534 F.3d 207, 210 (3d Cir.2008) (“The initial step of a Fourth Amendment suppression analysis requires us to determine the timing of the seizure.”). The timing of the seizure is significant — if the seizure occurred after suspicious behavior such as flight, this factors into our analysis of whether there was reasonable suspicion to justify the seizure. But if the seizure occurred before the flight, as the District Court found here, then the flight “plays no role in the reasonable suspicion analysis.” United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006). As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable? The Supreme Court provides us with guidance. In Mendenhall, the Court listed several factors indicative of a seizure: “the threatening presence of several officers, the display of a weapon by" }, { "docid": "16203873", "title": "", "text": "question of law.” United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992) (citations omitted). Here, the facts are undisputed; accordingly, our review is de novo. See United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991). But see United States v. Silva, 957 F.2d 157, 158 (5th Cir.), petition for cert. filed, No. 92-5259 (U.S. July 21, 1992); United States v. Wilson, 895 F.2d 168, 171 (4th Cir.1990); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). The Supreme Court has delineated three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment, see, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1979-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984); (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity, see, e.g., United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); and (3) arrests, the most intrusive of Fourth Amendment sei zures and reasonable only if supported by probable cause. See, e.g., Hayes v. Florida, 470 U.S. 811, 815-16, 105 S.Ct. 1648, 1646, 84 L.Ed.2d 705 (1985); Dunaway v. New York, 442 U.S. 200, 212-16, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). At issue in the case before us is whether the encounter between Defendant and the agents at the door to his train compartment was a consensual encounter or an investigative detention. In Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court set forth the governing standard for determining whether a police-citizen encounter implicates the Fourth Amendment: [I]n order to determine" }, { "docid": "22914167", "title": "", "text": "with the constitutional definition of unlawful arrest. The Fourth Amendment, of course, does not by its terms proscribe false arrests; it proscribes “unreasonable ... seizures.” An arrest, however, is a seizure, indeed it is the “quintessential ‘seizure of the person.’ ” California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991). The standard test for what constitutes a seizure was first articulated by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 551-57, 100 S.Ct. 1870, 1875-78, 64 L.Ed.2d 497 (1980), and adopted by the full Court in INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). The police can be said to have seized an individual “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. We have held that when an officer “ ‘even briefly detains an individual and restrains that persons right to walk away’, he has effected a seizure and the limitations of the Fourth Amendment become applicable.” United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 3250, 111 L.Ed.2d 760 (1990); (citing United States v. Sugrim, 732 F.2d 25, 28 (2d Cir.1984)). Of course, just as not every encounter between a citizen and the police is a seizure, see Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968), not every seizure is an arrest. Whether an arrest supportable by probable cause occurs, as distinct from a form of Fourth Amendment intrusion supportable by less than probable cause, depends on the seizure’s level of intrusiveness, and on the corresponding degree of justification required to effect each level of intrusiveness. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (“The scope of the detention must be carefully tailored to its underlying justification.”); United States v. Pelusio, 725 F.2d 161, 165 (2d Cir.1983). Thus it is not enough to say a person" } ]

[ { "docid": "5161949", "title": "", "text": "motion at the conclusion of the case. The cost of printing this material (amounting to 20 pages) will be taxed against appellee. The designations of record, being merely devices to get the record prepared, and orders extending time to file the record should not be printed; and since the statement of points must be set forth in appellant’s brief, it should not be printed. We find that government counsel frequently err in following our printing rules, perhaps because the matter of expense is not of immediate concern to them. In any event, we will appreciate a more active cooperation in the future on the part of all counsel in avoiding unnecessary printing. Motion granted in part. Beremen v. Power Pub. Co., 1933, 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024; Burton v. Dickson, 1919, 104 Kan. 594, 180 P. 216; Wise v. Brotherhood of Locomotive Firemen, etc., 8 Cir., 1918, 252 P. 961. Cf. Caldwell v. Hayden, 1914, 42 App.D.C. 166. Prosser on Torts (1941), § 94, pp. 831-2; 1 Cooley on Torts, 4th Ed., 1932, § 158! See Prosser, supra note 2, pp. 846-47. “ * * * the refusal of this request [a request for an instruction on the assumption of risk] appears plainly erroneous. But this does not result in a reversal of the judgment under review, because by specific findings of fact the jury negatived the hypothesis upon which alone the instruction was based.” Kanawha & M. R. Co. v. Kerse, 1916, 239 U.S. 576, 582, 36 S.Ct. 174, 175, 60 L.Ed. 448; Century Indemnity Co. v. Shakespeare, 10 Cir., 1934, 74 F.2d 392. White v. Nicholls, 1845, 3 How. 266, 11 L.Ed. 591, 602; Wise v. Brotherhood of Locomotive Firemen, etc., supra note 1; Newell, Slander and Libel, 4th Ed., 382. 28 U.S.C.A. following section 723c. After the motion for a directed verdict at the close of plaintiff’s ease was overruled, defendant went forward and presented his defense. Having proceeded to put on his defense, defendant thereby waived his objection to the ruling denying his motion for a directed verdict at the close of" } ]

[ { "docid": "16931907", "title": "", "text": "Co., 169 Md. 541, 182 A. 436 (1936); Wyatt v. Russell, 308 Pa. 366, 162 A. 256 (1932); Laufer v. Bridgeport Trac. Co., 68 Conn. 475, 37 A. 379, 37 L.R.A. 533 (1897). See Perkins v. United Transp. Co., 219 F. 2d 422 (2d Cir. 1955) . Whittenmore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944); Jackson, v. Chesapeake & O. Ry. Co., 179 Va. 642, 20 S.E.2d 489 (1962); Holcombe v. W. N. Watson Supply Co., 171 S.C. 110, 171 S.E. 604 (1933); Petro v. Hines, 299 Ill. 236, 132 N.E. 462 (1921). Cf. Annot., 15 A.L.R. 125; Annot., 18 A.L.R. 1106; 9C Blashfield, Cyclopedia of Automobile Law & Practice, 296 et seq.; 4 Chamberlayne, Modern Law of Evidence §§ 3195-98; 2 Jones Commentaries on Evidence §§ 687-89. . Appellant acknowledges on brief that there was evidence in the record showing his fixed habit as an Orthodox Jew to be at home with his family by sundown every Friday for the Sabbath observance. . Gillette Motor Transport, Inc. v. Kirby, 208 Okl. 68, 253 P.2d 139 (1953); Petro v. Hines, 299 Ill. 236, 132 N.E. 462 (1921). See also note 13, and cases there cited. . It is well settled that the receipt of further cumulative evidence in a criminal trial lies within the sound discretion of the trial judge. See our decision in Burgman v. United States, 88 U.S.App.D.C. 184, 188-189, 188 F.2d 637, 641-642, cert. denied, 342 U.S. 838, 72 S.Ct. 64, 96 L.Ed. 1347 (1951); Suhay v. United States, 95 F.2d 890 (10th Cir. 1938), cert. denied, 304 U.S. 580, 58 S.Ct. 1060, 82 L. Ed. 1543 (1938); Chapa v. United States, 261 F. 775 (5th Cir. 1919), cert. denied, 252 U.S. 583, 40 S.Ct. 393, 64 L.Ed. 728 (1920). And see as to character evidence United States v. Baysek, 212 F.2d 446, 447 (3d Cir.), cert. denied, 348 U.S. 836, 75 S.Ct. 49, 99 L.Ed. 659 (1954); Shaw v. United States, 41 F.2d 26, 27-28 (5th Cir. 1930); Brady v. United States, 41 F.2d 449, 451 (7th Cir. 1930); Hauge v. United" }, { "docid": "22554535", "title": "", "text": "(1957) ; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 641-43 (1970). . E. g., Roberts v. Wood, 206 F.Supp. 579, 583 (S.D.Ala.1962) ; Nishi v. Hart-well, 52 Haw. 188, 473 P.2d 116, 119 (1970) ; Woods v. Brumlop, supra note 13, 377 P.2d at 525; Ball v. Mallinkrodt Chem. Works, 53 Tenn.App. 218, 381 S.W.2d 563, 567-568 (1964). . E. g., Scott v. Wilson, supra note 86, 396 S.W.2d at 534-535; Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1409-10 (1967) ; Note, 75 Harv.L.Rev. 1445, 1448 (1962). . See text supra at notes 12-13. . Note, 75 Harv.L.Rev. 1445, 1448 (1962). . See Fiorentino v. Wenger, 26 A.D.2d 693, 272 N.Y.S.2d 557, 559 (1966), appeal dismissed, 18 N.Y.2d 908, 276 N.Y.S. 2d 639, 223 N.E.2d 46 (1966), reversed on other grounds, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296 (1967). See also note 92, supra. . Becker v. Colonial Parking, Inc., 133 U.S.App.D.C. 213, 219-220, 409 F.2d 1130, 1136-1137 (1969) ; Richardson v. Gregory, 108 U.S.App.D.C. 263, 266-267, 281 F.2d 626, 629-630 (1960) ; Arthur v. Standard Eng’r. Co., 89 U.S.App.D.C. 399, 401, 193 F.2d 903, 905, 32 A.L.R.2d 408 (1951), cert. denied, 343 U.S. 964, 72 S.Ct. 1057, 96 L.Ed. 1361 (1952) ; Industrial Savs. Bank v. People’s Funeral Serv. Corp., 54 App.D.C. 259, 260, 296 F. 1006, 1007 (1924). . See Morse v. Moretti, 131 U.S.App.D.C. 158, 403 F.2d 564 (1968) ; Kosberg v. Washington Hosp. Center, Inc., 129 U.S. App.D.C. 322, 324, 394 F.2d 947, 949 (1968) ; Levy v. Vaughan, 42 U.S.App. D.C. 146, 153, 157 (1914). . Shetter v. Rochelle, supra note 70, 409 P.2d at 82-85; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L. Rev. 628, 646 (1970). . Shetter v. Rochelle, supra note 70, 409 P.2d at 83-84. See also Natanson v. Kline, supra note 12, 350 P.2d at 1106-1107; Hunter v. Burroughs, supra note 7, 96 S.E. at 369. . See text supra at notes 23-35, 74-79. . Plante, An Analysis of “Informed Consent,” 36 Fordham L.Rev. 639, 666-67 (1968) ; Waltz & Scheuneman, Informed" }, { "docid": "16931908", "title": "", "text": "Okl. 68, 253 P.2d 139 (1953); Petro v. Hines, 299 Ill. 236, 132 N.E. 462 (1921). See also note 13, and cases there cited. . It is well settled that the receipt of further cumulative evidence in a criminal trial lies within the sound discretion of the trial judge. See our decision in Burgman v. United States, 88 U.S.App.D.C. 184, 188-189, 188 F.2d 637, 641-642, cert. denied, 342 U.S. 838, 72 S.Ct. 64, 96 L.Ed. 1347 (1951); Suhay v. United States, 95 F.2d 890 (10th Cir. 1938), cert. denied, 304 U.S. 580, 58 S.Ct. 1060, 82 L. Ed. 1543 (1938); Chapa v. United States, 261 F. 775 (5th Cir. 1919), cert. denied, 252 U.S. 583, 40 S.Ct. 393, 64 L.Ed. 728 (1920). And see as to character evidence United States v. Baysek, 212 F.2d 446, 447 (3d Cir.), cert. denied, 348 U.S. 836, 75 S.Ct. 49, 99 L.Ed. 659 (1954); Shaw v. United States, 41 F.2d 26, 27-28 (5th Cir. 1930); Brady v. United States, 41 F.2d 449, 451 (7th Cir. 1930); Hauge v. United States, 276 F. 111 (9th Cir. 1921). The District Court’s original theory in this case was that an alibi could not successfully be established by evidence of habit, but as indicated, the only habit testimony actually excluded was that of the Babbi. We cannot hold this reversible error. In addition to what is said above, we note on the question of “weightiness” that the order in which appellant’s witnesses were called was the choice of himself (a lawyer) and his retained counsel, and that the reservation of the Babbi until the last to give evidence as to a habit already testified to must have been a deliberate choice made with knowledge of the possible consequences. . The court also instructed the jury that they were the sole judge of the credibility of each witness and gave full instructions regarding all the factors to be considered in determining credibility. It referred to the problem of contradiction in testimony. It instructed that the jury was to treat as evidence “those inferences which to your mind logically and" }, { "docid": "12851508", "title": "", "text": "No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); Haney v. City of Lexington, Ky., 386 S.W.2d 738, 10 A.L.R.3d 1362 (1964); Kelso v. City of Tacoma, 63 Wash.2d 913, 390 P.2d 2 (1964) (abrogation partly based on statute). . See, e. g., Nelson v. Maine Turnpike Authority, 157 Me. 174, 184-186, 170 A.2d 687, 693 (1961); State of Utah By & Through Road Commission v. Parker, 13 Utah 2d 65, 368 P.2d 585 (1962); Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9, 380 P.2d 168 (1963). The cases on both sides are collected and summarized in 3 K. C. Davis, supra Note 5, § 25.04 (1965 Pocket Part). . Supra Note 2. . District of Columbia v. Tyrrell, supra Note 3. . Booth v. District of Columbia, 100 U.S. App.D.C. 32, 241 F.2d 437 (1956) (District not liable for general failure to provide adequate sewer system, but may be liable for inadequate construction of sewer); Urow v. District of Columbia, 114 U.S.App.D.C. 350, 316 F.2d 351, cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59 (1963) (city not liable for failure to provide traffic light because decision “essentially legislative”). . Elgin v. District of Columbia, supra Note 2, 119 U.S.App.D.C. at 118, 337 F.2d at 154. . 119 U.S.App.D.C. at 119, 337 F.2d at 155. . 119 U.S.App.D.C. at 118, 337 F.2d at 154. . 119 U.S.App.D.C. at 119, 337 F.2d at 155. . 119 U.S.App.D.C. at 118-119, 337 F.2d at 154-155. . The substantial break which Elgin represented with the old “governmental-proprietary” distinction led Professor Davis to list it among those decisions abolishing municipal immunity. 3 K. C. Davis, supra Note 5, § 25.01 (1965 Pocket Part). . 119 U.S.App.D.C. at 117 n. 2, 337 F.2d at 153 n. 2. . 119 U.S.App.D.C. at 121, 337 F.2d at 157. . Ibid. . Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (dissenting opinion of Mr. Justice Jackson)." }, { "docid": "23362605", "title": "", "text": "333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), which although not deciding that the “public trial” clause is incorporated into the Fourteenth Amendment emphasizes that the right to a public trial is a fundamental concept in Anglo-American criminal justice. Ibid, at 266—271, 68 S.Ct. 499; United States ex rel. Bruno v. Herold, 408 F.2d 125, 132-133 (2 Cir. 1969) (Waterman, J., dissenting); Lewis v. Peyton, 352 F.2d 791 (4 Cir. 1965). See also Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 181, 138 A.2d 246, 248, cert. denied 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958). . Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). . Cf. Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); United States ex rel. Bruno v. Herold, 408 F.2d 125, 128-129 (2 Cir. 1969); United States v. Sorrentino, 175 F.2d 721, 723 (3 Cir.), cert. denied 338 U.S. 868, 70 S.Ct. 143, 94 L.Ed. 532 (1949) ; Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 180, 185, 138 A.2d 246, 248, 250, cert. denied 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958). . See Pennsylvania Rules of Criminal Procedure 323(d) and 324(d) quoted infra, pp. 11 and 12; Cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). . Hayes v. United States, 296 F.2d 657, 668 (8 Cir. 1967). . Steiner v. United States, 134 F.2d 931, 935 (5 Cir.), cert. denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721 (1943). . State v. Jackson, 43 N.J. 148, 203 A.2d 1, 11 A.L.R.3d 841 (1964), cert. denied Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). . See People v. Teitelbaum, 163 Cal.App. 2d 184, 329 P.2d 157, 171-172 (1958). . Cf. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967). . Pennsylvania Constitution, Declaration of Bights IX (1776), reprinted in 5 Thorpe, American Charters, Constitutions and Organic Laws, pp. 3081, 3083 (1909). . Reprinted, 5 Thorpe, op. cit." }, { "docid": "11875093", "title": "", "text": "first time and simultaneously rule on a new point which the losing party has had no occasion to address with evidence. We sug gest that in any comparable situation arising hereafter, the court should afford the party against whom the verdict is sought an opportunity to reopen the evidence before the ruling becomes irrevocable. . Restatement (Second) of Torts § 496 E, comment a (1965). . See W. Prosser, Torts § 67 at 465-468 (3d ed. 1964); 2 F. Harper & F. James, Torts § 21.3 (1956). . See the cases cited infra notes 20 to 24. . Restatement (Second) of Torts § 496 E, comment C (1965). . Dougherty v. Chas. H. Tompkins Co., 99 U.S.App.D.C. 348, 350, 240 F.2d 34, 36 (1957). . See Altemus v. Talmadge, 61 App.D.C. 148, 150, 58 F.2d 874, 876, cert. denied 287 U.S. 614, 53 S.Ct. 16, 77 L.Ed. 533 (1932). See also Smith v. District of Columbia, 89 U.S.App.D.C. 7, 189 F.2d 671, 39 A.L.R.2d 773 (1951). . Dougherty v. Chas. H. Tompkins Co., supra note 20. . Nielsen v. Barclay Corp., 103 U.S.App. D.C. 136, 255 F.2d 545 (1958). . Aylor v. Intercounty Constr. Corp., 127 U.S.App.D.C. 151, 155, 381 F.2d 930, 934 (1967). . See Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263 (1921); Rush v. Commercial Realty Co., 7 N.J.Misc. 337, 145 A. 476 (S.Ct.1929). See also Looney v. McLean, 129 Mass. 33 (1880); State of Maryland, for Use of Pumphrey v. Manor Real Estate & Trust Co., 176 F.2d 414 (4th Cir. 1949). . See Foster v. A. P. Jacobs & Associates, 85 Cal.App.2d 746, 193 P.2d 971, 974-978 (1948); Seelback v. Mellman, 293 Ky. 790, 170 S.W.2d 18, 19 (1943); Frizzell v. Sullivan, 117 Md. 388, 83 A. 651, 652 (1912); Williamson v. Derry Elec. Co., 89 N.H. 216, 196 A. 265, 266-267 (1938). . Restatement (Second) of Torts § 496 E, comment c (1965). Note, however, Fitzpatrick v. Fowler, 83 U.S.App.D.C. 229, 168 F.2d 172 (1948). . Hewitt v. Safeway Stores, 131 U.S. App.D.C. 270, 404 F.2d 1247 (Feb. 6, 1968)" }, { "docid": "23362606", "title": "", "text": "185 Pa.Super. 176, 180, 185, 138 A.2d 246, 248, 250, cert. denied 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958). . See Pennsylvania Rules of Criminal Procedure 323(d) and 324(d) quoted infra, pp. 11 and 12; Cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). . Hayes v. United States, 296 F.2d 657, 668 (8 Cir. 1967). . Steiner v. United States, 134 F.2d 931, 935 (5 Cir.), cert. denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721 (1943). . State v. Jackson, 43 N.J. 148, 203 A.2d 1, 11 A.L.R.3d 841 (1964), cert. denied Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). . See People v. Teitelbaum, 163 Cal.App. 2d 184, 329 P.2d 157, 171-172 (1958). . Cf. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967). . Pennsylvania Constitution, Declaration of Bights IX (1776), reprinted in 5 Thorpe, American Charters, Constitutions and Organic Laws, pp. 3081, 3083 (1909). . Reprinted, 5 Thorpe, op. cit. pp. 3047, 3061. . See In re Oliver, 333 U.S. at 270, n. 24, 68 S.Ct. 499; People v. Jelke, 308 N.Y. 56, 62, 123 N.E.2d 769, 772, 48 A.L.R.2d 1425 (1954); 6 Wigmore, Evidence, § 1834, p. 333 (3d ed. 1940). . See generally Annot. 26 A.L.R.2d 762. “It is entirely possible that the apparently idle Spectator may prove to be an unknown witness vital to the defense of the accused.” United States v. Kobli, 172 F.2d 919, 923 (3 Cir. 1949) ; Tank-sley v. United States, 145 F.2d 58, 59, 10 Alaska 443, 156 A.L.R. 257 (9 Cir. 1944). 6 Wigmore, Evidence, § 1834, p. 333 (3d Ed. 1940). . The Supreme Court has held in Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967), that it is permissible to hold a Jackson v. Denno hearing in the presence of the jury although at the risk that the trial will be aborted to avoid prejudice to the defendant in the event the trial judge concludes that the confession must" }, { "docid": "5348482", "title": "", "text": "Ky. 110, 119 S.W. 795, 797-798 (1909); Moore v. State, 96 Tenn. 209, 33 S.W. 1046, 1048 (1896). See also cases cited supra note 56. . See 5 Wigmore, Evidence § 1618, at 491 (3d ed. 1940). . United States v. Null, supra note 44, 415 F.2d at 1180; Bryant v. United States, 257 F. 378, 387 (5th Cir.), cert. denied, 40 S.Ct. 117 (1919); Dixon v. State, 189 Ark. 812, 75 S.W.2d 242, 243 (1934); State v. Bugg, 316 Mo. 581, 292 S.W. 49, 50 (1927); Commonwealth v. White, 271 Penn. 584, 115 A. 870, 871 (1922); State v. Edwards, 13 Utah 2d 51, 368 P.2d 464, 467 (1962); 5 Wigmore, Evidence § 1617 (3d ed. 1940). . See 5 Wigmore, Evidence § 1618 (3d ed. 1940). . See cases collected in 5 Wigmore, Evidence § 1618, at 492-93 n. 1 (3d ed. 1940). Reputation for truth and veracity is a distinct exception. See note 44, supra. . See the cases collected in 5 Wigmore, Evidence § 1618, at 492-93 n. 1 (3d ed. 1940); Annots., 71 A.L.R. 1504, 1532-1534 (1931), 47 A.L.R.2d 1258, 1300-1302 (1956). . See text supra at note 28. . See text supra at note 61. . See text supra at note 60. . See Michelson v. United States, supra note 13, 335 U.S. at 480, 69 S.Ct. 213; United States v. Williams, supra note 27, 141 U.S.App.D.C. at 134, 436 F.2d at 288; Shimon v. United States, supra note 13, 122 U.S.App.D.C. at 156, 352 F.2d at 453. . Michelson v. United States, supra note 13, 335 U.S. at 480, 69 S.Ct. 213. . E. g., Michelson v. United States, supra note 13, 335 U.S. at 483-484, 69 S.Ct. 213. . See Coleman v. United States, supra note 26, 137 U.S.App.D.C. at 53-55, 420 F.2d at 621-623, where we sustained inquiry concerning knowledge of three convictions for petit larceny, one of which occurred subsequent to the offenses on trial. See also United States v. Wolfson, 405 F.2d 779, 785-786 (2d Cir. 1968), cert. denied, 394 U.S. 946, 89 S.Ct. 1275, 22 L.Ed.2d 479 (1969);" }, { "docid": "9743179", "title": "", "text": "with a statement by an alleged accomplice implicating the defendant in an offense. The agent testified that while this damaging statement was being repeated to the defendant, the defendant nodded his head “up and down,” though at the end of the statement he denied complicity. This court ruled that, as a matter of law, the defendant’s concurrence in the damaging statement was too ambiguous, too lacking in evidentiary weight, to be properly submitted to the jury. See also Kelley v. United States, 99 U.S.App.D.C. 13, 236 F.2d 746 (1956); United States v. Gross, 276 F.2d 816 (2d Cir.), cert. denied, 366 U.S. 935, 81 S.Ct. 1659, 6 L.Ed.2d 847 (1960); Arpan v. United States, 260 F.2d 649 (8th Cir. 1958). . McCormick, Evidence § 246, at 527 (1954); Model Code of Evidence, Rule 507 and commentary. Compare State v. Davis, 61 N.J.Super. 536, 161 A.2d 552 (1960) (There must be “understanding of the incriminating meaning” of the attributed admission, 161 A.2d at 558) ; State v. Sweeny, 77 N.J.Super. 512, 187 A.2d 39 (1962); Commonwealth v. Sazama, 339 Mass. 154, 158 N.E.2d 313 (1959); Commonwealth v. Burke, 339 Mass. 521, 159 N.E.2d 856, 77 A.L.R.2d 451 (1959); People v. Briggs, 58 Cal.2d 385, 24 Cal. Rptr. 417, 374 P.2d 257 (1962). . See Dickerson v. United States, 62 App.D.C. 191, 193-194, 65 F.2d 824, 826-827 (1933); Sandez v. United States, 239 F.2d 239, 250 (9th Cir. 1956); State v. Bemis, 33 Cal.2d 395, 202 P.2d 82 (1949) (Traynor, J.); Note: Silence as Incrimination in Federal Courts, 40 Minn. L.Rev. 598, 605 (1956). . Quinn v. United States, 91 U.S.App.D.C. 344, 348, 203 F.2d 20, 24 (1952), rev’d on other grounds, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955). Cf. McNabb v. United States, 318 U.S. 332, 338 n. 5, 63 S.Ct. 608, 87 L.Ed. 819 (1943). . See Stewart v. United States, 101 U.S. App.D.C. 51, 56, 247 F.2d 42, 47 (1957) (en banc); Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 375 (1958); Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632 (1957); Barry v." }, { "docid": "14305931", "title": "", "text": "290, 86 F.2d 836, 846, 110 A.L.R. 393 (1936); Campbell v. District of Columbia, 64 App.D.C. 375, 379, 78 F.2d 725, 729 (1935); District of Columbia v. Leys, 62 App.D.C. 3, 4, 63 F.2d 646, 647 (1932), cert. denied 289 U.S. 756, 53 S.Ct. 787, 77 L.Ed. 1500 (1933); Trometer v. District of Columbia, 24 App.D.C. 242, 247 (1904). . Levin v. United States, 119 U.S.App.D.C. 156, 164 n. 13, 338 F.2d 265, 273 n. 13 (1964), cert. denied 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965); Burgman v. United States, 88 U.S.App.D.C. 184, 188-189, 188 F.2d 637, 641-642, cert. denied 342 U.S. 838, 72 S.Ct. 64, 96 L.Ed. 1347 (1951). . See cases collected in Annots., 21 A.L.R. 335 (1922), 48 A.L.R. 947 (1927). . Washington Times Co. v. Bonner, supra note 3. . 42 App.D.C. 166 (1914). . Id. at 169. . Ibid. . Id. at 169-170. . Id. at 170. . 79 U.S.App.D.C. 360, 148 F.2d 10 (1945). . Id. at 362, 148 F.2d at 12. . Ibid. . Ibid. . Wise v. Brotherhood of Locomotive Firemen and Enginemen, 252 F. 961 (8th Cir. 1918); Krause v. Bertrand, 159 Cal.App.2d 318, 323 P.2d 784 (1958); Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524 (1950); Ward v. Painters’ Local Union No. 300, 41 Wash.2d 859, 252 P.2d 253 (1953). See also Willenbucher v. McCormick, 229 F.Supp. 659 (D.Colo.1964). . See Emde v. San Joaquin County Cent. Labor Council, 23 Cal.2d 146, 143 P.2d 20, 150 A.L.R. 916 (1943); Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024 (1933); cf. Paducah Newspapers v. Wise, 247 S.W.2d 989 (Ky.1951), cert. denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1347 (1952). . See, e. g., Blake v. Trainer, supra note 12, 79 U.S.App.D.C. at 362, 148 F.2d at 12; Soley v. Ampudia, 183 F.2d 277, 19 A.L.R.2d 689 (5th Cir. 1950); Wise v. Brotherhood of Locomotive Firemen and Enginemen, supra note 16, 252 F. at 964-965; Willenbucher v. McCormick, supra note 16, 229 F.Supp. at 663-665; Arnold v. National Union of Marine" }, { "docid": "11986568", "title": "", "text": "Brown v. United States, supra note 28, 375 F.2d at 318 (concurring opinion). . Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). . See supra, note 1; Harrison v. United States, supra note 5, 123 U.S.App.D.C. at 236 n. 17, 359 F.2d at 220 n. 17. . Compare Accardo v. United States, 102 U.S.App.D.C. 4, 249 F.2d 519 (1957), cert. denied 356 U.S. 943, 78 S.Ct. 787, 2 L.Ed.2d 817 (1958). . A Government witness residing across the street from Brown’s house saw a male come out of Brown’s doorway immediately after the shot “and put something under his coat, a gun, and ran down the street * * * . See Miller v. United States, 116 U.S. App.D.C. 45, 320 F.2d 767 (1963); Hunt v. United States, 115 U.S.App.D.C. 1, 4, 316 F.2d 652, 655 (1963). . Curley v. United States, 81 U.S.App. D.C. 389, 392, 160 F.2d 229, 232, cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). . Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). . Id. at 71, 53 S.Ct. at 65. . Representation by unlicensed “counsel” was held to deny constitutional rights in McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961); Jones v. State, 57 Ga.App. 344, 195 S.E. 316 (1938); Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813 (1942); Jackson v. State, 316 P.2d 213 (Okl.Crim.1957); Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958). See also Achtien v. Dowd, 117 F.2d 989 (7th Cir. 1941). . Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1939); Coplon v. United States, 89 U.S.App.D.C. 103, 113-114, 191 F.2d 749, 759-760 (1951), cert. denied 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). . Harrison v. United States, supra note 5. 123 U.S.App.D.C. at 233, 359 F.2d at 217. . 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (1942). . 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). . Massiah v. United" }, { "docid": "22554536", "title": "", "text": "F.2d 626, 629-630 (1960) ; Arthur v. Standard Eng’r. Co., 89 U.S.App.D.C. 399, 401, 193 F.2d 903, 905, 32 A.L.R.2d 408 (1951), cert. denied, 343 U.S. 964, 72 S.Ct. 1057, 96 L.Ed. 1361 (1952) ; Industrial Savs. Bank v. People’s Funeral Serv. Corp., 54 App.D.C. 259, 260, 296 F. 1006, 1007 (1924). . See Morse v. Moretti, 131 U.S.App.D.C. 158, 403 F.2d 564 (1968) ; Kosberg v. Washington Hosp. Center, Inc., 129 U.S. App.D.C. 322, 324, 394 F.2d 947, 949 (1968) ; Levy v. Vaughan, 42 U.S.App. D.C. 146, 153, 157 (1914). . Shetter v. Rochelle, supra note 70, 409 P.2d at 82-85; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L. Rev. 628, 646 (1970). . Shetter v. Rochelle, supra note 70, 409 P.2d at 83-84. See also Natanson v. Kline, supra note 12, 350 P.2d at 1106-1107; Hunter v. Burroughs, supra note 7, 96 S.E. at 369. . See text supra at notes 23-35, 74-79. . Plante, An Analysis of “Informed Consent,” 36 Fordham L.Rev. 639, 666-67 (1968) ; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 646-48 (1970) ; Comment, Informed Consent in Medical Malpractice, 55 Calif.L. Rev. 1396, 1411-14 (1967). . See text supra at notes 12-13. . Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 647 (1970). . Id. at 647. . Id. at 646. . Id. at 648. . See cases cited stipra note 103. . See 9 J. Wigmore, Evidence § 2485 (3d ed. 1940). . See, e. g., Morse v. Moretti, supra note 101, 131 U.S.App.D.C. at 158, 403 F.2d at 564; Kosberg v. Washington Hosp. Center, Inc., supra note 101, 129 U.S. App.D.C. at 324, 394 F.2d at 949; Smith v. Reitman, 128 U.S.App.D.C. 352, 353, 389 F.2d 303, 304 (1967). . See Part VI, supra. . See 9 J. Wigmore, Evidence § 2486, 2488, 2489 (3d ed. 1940). See also Raza v. Sullivan, 139 U.S.App.D.C. 184, 186-188, 432 F.2d 617, 619-621 (1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971). . See cases cited infra note 119. . See text supra at" }, { "docid": "14305932", "title": "", "text": ". Wise v. Brotherhood of Locomotive Firemen and Enginemen, 252 F. 961 (8th Cir. 1918); Krause v. Bertrand, 159 Cal.App.2d 318, 323 P.2d 784 (1958); Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524 (1950); Ward v. Painters’ Local Union No. 300, 41 Wash.2d 859, 252 P.2d 253 (1953). See also Willenbucher v. McCormick, 229 F.Supp. 659 (D.Colo.1964). . See Emde v. San Joaquin County Cent. Labor Council, 23 Cal.2d 146, 143 P.2d 20, 150 A.L.R. 916 (1943); Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024 (1933); cf. Paducah Newspapers v. Wise, 247 S.W.2d 989 (Ky.1951), cert. denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1347 (1952). . See, e. g., Blake v. Trainer, supra note 12, 79 U.S.App.D.C. at 362, 148 F.2d at 12; Soley v. Ampudia, 183 F.2d 277, 19 A.L.R.2d 689 (5th Cir. 1950); Wise v. Brotherhood of Locomotive Firemen and Enginemen, supra note 16, 252 F. at 964-965; Willenbucher v. McCormick, supra note 16, 229 F.Supp. at 663-665; Arnold v. National Union of Marine Cooks and Stewards, 44 Wash.2d 183, 265 P.2d 1051, 1053, aff’d 348 U.S. 37 (1954). . See, e. g., Blake v. Trainer, supra note 12, 79 U.S.App.D.C. at 362, 148 F.2d at 12; Soley v. Ampudia, supra note 18; Bereman v. Power Publishing Co., supra note 17, 27 P.2d at 751; Sheehan v. Tobin, supra note 16, 93 N.E.2d at 529-530. . Whether a communication is privileged, where the facts surrounding its publication are undisputed, is a question of law for the court. Dickins v. International Bhd. of Teamsters, 84 U.S.App.D.C. 51, 54 n. 2, 171 F.2d 21, 24 n. 2 (1948); National Disabled Soldiers’ League v. Haan, 55 App.D.C. 243, 247, 4 F.2d 436, 440 (1925); Norfolk & Wash. Steamboat Co. v. Davis, 12 App.D.C. 306, 325 (1898). Whether under the circumstances there was an abuse of the privilege is a question of fact for the jury. Dickins v. International Bhd. of Teamsters, supra. . F.R.Civ.P. 16(1). . F.R.Civ.P. 16 ; see Cannon Eng’r Co. v. Merando, Inc., 102 U.S.App.D.C. 96, 250 F.2d 421" }, { "docid": "11868342", "title": "", "text": "323; Dickins v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, 84 U.S.App.D.C. 51, 171 F.2d 21; Blake v. Trainer, 79 U.S.App.D.C. 360, 148 F.2d 10; Bereman v. Power Pub. Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024; Emde v. San Joaquin County Central Labor Council, 23 Cal.2d 146, 143 P.2d 20, 150 A.L.R. 916. . “A privileged publication is one made * * * “In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent * ' * Title 3, § 45, Canal Zone Code 1934. . “As used by Ampudia and understood by his audience, the term ‘Informer,’ meant that Soley was informing persons who were hostile to the Union about activities of the Union that Ampudia and his fellow officers of Local 713 were trying to keep quiet. The only thing that Soley was trying to do was to purge the Union of the curse of Communism, and this was in perfect keeping with the attitude of the C. I. O. in the United Slates at that time. His loyalty was of a higher type than that of Ampudia. Soley denies the charge that at any time he was an ‘informer.’ As used by Ampudia, the term ‘news carrier’ as applied to Soley was really a repetition of the term ‘informer,’ and its implications are the same. As used by Ampudia the term ‘stooge’ as applied to Soley was a charge that Soley was being maintained in the Union by a person or persons'who were inimical to the Union and its purposes, and it was so understood by most of the people present, both union and non-union people. As used by Ampudia the term ‘stool pigeon’ applied to Soley meant, and was so understood by most persons present, that Soley was in the pay of some bureau of the Government for the purpose of keeping it informed of the activities of the" }, { "docid": "14305930", "title": "", "text": "overtures were affected in Blake as they were here. It may, of course, be that had our appellant been indulged the defense of privilege, the jury’s verdict would have been the same. But of this we cannot be certain and, since we are not, appellant must be afforded a new trial. Reversed and remanded for a new trial. . Appellant refers us to cases holding that a court may not limit to a specified number the witnesses who would testify to a main or controlling fact. See Annot., 5 A.L.R.3d 169, 194-196 (1966). These cases involved restrictions, imposed by rule or order, that were purely numerical in character and which for that reason, differ essentially from those resulting from an exercise of the court’s general authority to control the production of cumulative evidence on a single topic. . Appellant’s counsel admitted that the testimony of the thirteen witnesses he was not permitted to call would have coincided generally with that of the twelve he had presented. . Washington Times Co. v. Bonner, 66 App.D.C. 280, 290, 86 F.2d 836, 846, 110 A.L.R. 393 (1936); Campbell v. District of Columbia, 64 App.D.C. 375, 379, 78 F.2d 725, 729 (1935); District of Columbia v. Leys, 62 App.D.C. 3, 4, 63 F.2d 646, 647 (1932), cert. denied 289 U.S. 756, 53 S.Ct. 787, 77 L.Ed. 1500 (1933); Trometer v. District of Columbia, 24 App.D.C. 242, 247 (1904). . Levin v. United States, 119 U.S.App.D.C. 156, 164 n. 13, 338 F.2d 265, 273 n. 13 (1964), cert. denied 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965); Burgman v. United States, 88 U.S.App.D.C. 184, 188-189, 188 F.2d 637, 641-642, cert. denied 342 U.S. 838, 72 S.Ct. 64, 96 L.Ed. 1347 (1951). . See cases collected in Annots., 21 A.L.R. 335 (1922), 48 A.L.R. 947 (1927). . Washington Times Co. v. Bonner, supra note 3. . 42 App.D.C. 166 (1914). . Id. at 169. . Ibid. . Id. at 169-170. . Id. at 170. . 79 U.S.App.D.C. 360, 148 F.2d 10 (1945). . Id. at 362, 148 F.2d at 12. . Ibid. . Ibid." }, { "docid": "11986569", "title": "", "text": "Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). . Id. at 71, 53 S.Ct. at 65. . Representation by unlicensed “counsel” was held to deny constitutional rights in McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961); Jones v. State, 57 Ga.App. 344, 195 S.E. 316 (1938); Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813 (1942); Jackson v. State, 316 P.2d 213 (Okl.Crim.1957); Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958). See also Achtien v. Dowd, 117 F.2d 989 (7th Cir. 1941). . Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1939); Coplon v. United States, 89 U.S.App.D.C. 103, 113-114, 191 F.2d 749, 759-760 (1951), cert. denied 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). . Harrison v. United States, supra note 5. 123 U.S.App.D.C. at 233, 359 F.2d at 217. . 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (1942). . 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). . Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, supra note 25; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . See Miranda v. State of Arizona, supra note 46, 384 U.S. at 444, 86 S.Ct. 1602; Wong Sun v. United States, supra note 27, 371 U.S. at 487, 83 S.Ct. 407. . Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954). . Tate v. United States, 109 U.S.App.D.C. 13, 17, 283 F.2d 377, 381 (1960). . Carter v. United States, No. 20,091, D.C.Cir., March 2, 1967 at 2. See also Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542, cert. denied 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964); Barkley v. United States, 116 U.S.App.D.C. 334, 335-336 n. 1, 323 F.2d 804, 805-806 n. 1 (1963). . See cases cited supra notes 48 to 50. See also Inge v. United States, 123 U.S. App.D.C. 6, 356 F.2d 345 (1966); Johnson v." }, { "docid": "21339882", "title": "", "text": "Pape, supra note 1, 365 U.S. at 167-187, 81 S.Ct. 473. His “civil rights” claims had already been brought to the notice of the court by earlier allegations of record. . Fed.R.Civ.P. rule 59(e). . 7 Moore, Federal Practice ¶ 73.C9 [1] at p. 3136, ¶ 73.09 [4] at p. 3143 (2d ed. 1955); Fed.R.Civ.P. rule 73(a); and see generally, Hulson v. Atchison, T. & S. F. Ry. Co., 289 F.2d 726 (7 Cir. 1961); Walker v. Bank of America National Trust & Sav. Ass’n, 268 F.2d 16, 19, 20 (9 Cir.), cert. denied, 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.24 158 (1959). . Sobel v. Diatz, 88 U.S.App.D.C. 329, 330, 189 F.2d 26, 27 (1951); Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782 (1943). . Piatek v. Government Services, Inc., 111 U.S.App.D.C. 308, 296 F.2d 430, 431 (1961); Railway Express Agency, Inc., v. Epperson, 240 F.2d 189, 191, 192 (8 Cir. 1957). Cf. Hoiness v. United States, 335 U.S. 297, 300, 301, 69 S.Ct. 70, 93 L.Ed. 16 (1948). But see Foman v. Davis, 292 F.2d 85 (1 Cir. 1961), cert. granted, 368 U.S. 951, 82 S.Ct. 396, 7 L.Ed.2d 385 (1962). . Levy v. Hayward, 101 U.S.App.D.C. 232, 248 F.2d 153 (1957), cert. denied, 356 U.S. 941, 78 S.Ct. 783, 2 L.Ed.2d 815 (1958). . Supra note 5; cf. Dye v. Cox (E.D.Va.1954), 125 F.Supp. 714. . Allison v. Mackey, 88 U.S.App.D.C. 154, 188 F.2d 983 (1951); cf. MacMaugh v. Baldwin, 99 U.S.App.D.C. 247, 248 n. 1, 239 F.2d 67, 68 n. 1 (1956). . Such is not always the case for obviously a motion to dismiss exercises a different office. Unlike Moffett v. Commerce Trust Co., 187 F.2d 242, 249 (8 Cir.), cert. denied, 342 U.S. 818, 72 S.Ct. 32, 96 L.Ed. 618 (1951), where the district judge declined to pass on the motion for summary judgment, the trial judge here had denied the alternative motions. . Allison v. Mackey, supra note 12; Appalachian Power Company v. American Institute of Certified Public Accountants, 268 F.2d 844, 845 (2 Cir.), cert. denied," }, { "docid": "22034319", "title": "", "text": "390 F.2d 471 (1968); Philadelphia Television Broadcasting Co. v. F.C.C., supra, Note 53, 123 U.S.App.D.C. at 299-300, 359 F.2d at 283-284. See also 1 K. Davis, Administrative Law Treatise § 5.03 (1958). . Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), quoting New York v. United States, 342 U.S. 882, 884, 72 S.Ct. 152, 96 L.Ed. 662 (1951) (dissenting opinion) (emphasis omitted). See Volkswagenwerk Aktiengesellschaft v. F.M.C., 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 318, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). . Greater Boston Television Corp. v. F.C.C., supra Note 54, 143 U.S.App.D.C. at 393, 444 F.2d at 851. See United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); Niagara Mohawk Power Corp. v. F.P.C., 126 U.S.App.D.C. 376, 383 n. 24, 379 F.2d 153, 160 n. 24 (1967). . While the exact bounds of the concept of arbitrary and capricious administrative action are not precisely defined in the Act, it is well settled that the core of the concept is the notion of rationality. See, e. g., Burlington Truck Lines, Inc. v. United States, supra Note 64, 371 U.S. at 168, 83 S.Ct. 239, 9 L.Ed.2d 207; Greater Boston Television Corp. v. F.C.C., supra Note 54, 143 U.S.App.D.C. at 392, 444 F.2d at 850; F.T.C. v. Crowther, supra Note 53, 139 U.S.App. D.C. at 141, 430 F.2d at 514; Paducah Newspapers, Inc. v. F.C.C., 134 U.S. App.D.C. 287, 288, 414 F.2d 1183, 1184 (1969); Grace Line, Inc. v. F.M.B., 2 Cir., 263 F.2d 709, 711 (1959); Van Curler Broadcasting Corp. v. United States, 98 U.S.App.D.C. 432, 435, 236 F.2d 727, 730, cert, denied, 352 U.S. 935, 77 S.Ct. 226, 1 L.Ed.2d 163 (1956); Willapoint Oysters, Inc. v. Ewing, 9 Cir., 174 F.2d 676, 695, cert, denied, 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527 (1949). . Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended, 47 U.S.C. § 301 H seq. (1964). Section 315 reads in pertinent" }, { "docid": "2663154", "title": "", "text": "the Butte [A. & P.] Ry. Co. case [Butte, A. & P. Ry. Co. v. United States, 290 U.S. 127, 54 S.Ct. 108, 78 L.Ed. 222] it contained no exception. Here as in that case the intent seems plain — the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law. ****** “What is open when a court of equity is asked for its affirmative help by granting a decree for the enforcement of a certificate of the Mediation Board under § 2, Ninth raises questions not now before us. [cases cited] Reversed.” 320 U.S. 300-307, 64 S.Ct. 96-100, 88 L.Ed. 63-67. Companionate to Switchmen’s Union and in full accord with its thesis are General Committee v. Missouri-K.-T. R. Co., 1943, 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, and General Committee v. Southern Pacific Co., 1943, 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85. See also Brotherhood of Locomotive Firemen and Enginemen v. Louisville & N. R. Co., 6 Cir. 1968, 400 F.2d 572, cert. denied, 393 U.S. 1050, 89 S.Ct. 689, 21 L.Ed.2d 692; Brotherhood of Ry. & Steamship Clerks v. United Air Lines, 6 Cir. 1963, 325 F.2d 576, cert. dismissed as improvidently granted, 379 U.S. 26, 85 S.Ct. 183, 13 L.Ed.2d 173; Radio Officers’ Union v. National Mediation Board, 1950, 86 U.S.App.D.C. 319, 181 F.2d 801; United Transport Serv. v. National Mediation Board, 1949, 85 U.S.App.D.C. 352, 179 F.2d 446; Kirkland v. Atlantic Coast Line R. Co., 1948, 83 U.S.App.D.C. 205, 167 F.2d 529; Order of Railway Conductors v. National Mediation Board, 1944, 79 U.S.App.D.C. 1, 141 F.2d 366; but cf. Brotherhood of Locomotive Firemen and Enginemen v. Kenan, 5 Cir. 1937, 87 F.2d 651; Brotherhood of Railroad Trainmen v. National Mediation Board, 1936, 66 App.D.C. 375, 88 F.2d 757. On its face Switchmen’s Union appears to preclude all review of National Mediation Board decisions in representation proceedings. The sweeping language of Switchmen’s Union and its progeny, however, has been explained and narrowed somewhat in" }, { "docid": "5348481", "title": "", "text": "14, 473 F.2d 131; United States v. Wooden, supra note 14, 137 U.S.App.D.C. at 3, 420 F.2d at 253; Awkard v. United States, supra note 16, 122 U.S.App.D.C. at 168-169, 352 F.2d at 644-645; Shimon v. United States, supra note 13, 122 U.S.App.D.C. at 157, 352 F.2d at 454. . See text supra at note 10. . Supra note 13. . 335 U.S. at 483-484, 69 S.Ct. at 222. . Id. at 484, 69 S.Ct. at 222. . See cases collected in Annots., 71 A.L.R. 1504, 1530-1532 (1931), 47 A.L.R.2d 1258, 1297-1299 (1956). . People v. Willy, 301 Ill. 307, 133 N.E. 859, 864, 865 (1921); State v. Baldanzo, 106 N.J.L. 498, 148 A. 725, 727, 67 A.L.R. 1207 (1930); Mannix v. Portland Tel., 144 Or. 172, 23 P.2d 138, 145, 90 A.L.R. 55 (en banc 1933); Strader v. State, 208 Tenn. 192, 344 S.W.2d 546, 549, 87 A.L.R.2d 963 (1961); Mohler v. Commonwealth, supra note 44, 111 S.E. at 461-462. . State v. Hobbs, 172 N.W.2d 268, 275-276 (Iowa 1969); Allen v. Commonwealth, 134 Ky. 110, 119 S.W. 795, 797-798 (1909); Moore v. State, 96 Tenn. 209, 33 S.W. 1046, 1048 (1896). See also cases cited supra note 56. . See 5 Wigmore, Evidence § 1618, at 491 (3d ed. 1940). . United States v. Null, supra note 44, 415 F.2d at 1180; Bryant v. United States, 257 F. 378, 387 (5th Cir.), cert. denied, 40 S.Ct. 117 (1919); Dixon v. State, 189 Ark. 812, 75 S.W.2d 242, 243 (1934); State v. Bugg, 316 Mo. 581, 292 S.W. 49, 50 (1927); Commonwealth v. White, 271 Penn. 584, 115 A. 870, 871 (1922); State v. Edwards, 13 Utah 2d 51, 368 P.2d 464, 467 (1962); 5 Wigmore, Evidence § 1617 (3d ed. 1940). . See 5 Wigmore, Evidence § 1618 (3d ed. 1940). . See cases collected in 5 Wigmore, Evidence § 1618, at 492-93 n. 1 (3d ed. 1940). Reputation for truth and veracity is a distinct exception. See note 44, supra. . See the cases collected in 5 Wigmore, Evidence § 1618, at 492-93 n. 1 (3d ed." } ]

[ { "docid": "22204346", "title": "", "text": "direct appeal. In such a proceeding a federal court is authorized to issue “a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. §2254(a). In view of the limited scope of review of a state judgment authorized in a federal habeas corpus proceeding, it is plain that the Court of Appeals erred in this case. On the assumption that the Court of Appeals correctly determined that the verdicts are facially inconsistent, we hold that there is no federal requirement that a state trial judge explain his reasons for acquitting a defendant in a state criminal trial; even if the acquittal rests on an improper ground, that error would not create a constitutional defect in a guilty verdict that is supported by sufficient evidence and is the product of a fair trial. I The work of appellate judges is facilitated when trial judges make findings of fact that explain the basis for controversial rulings. Although there are occasions when an explanation of the reasons for a decision may be required by the demands of due process, such occasions are the exception rather than the rule. Federal judges have no general supervisory power over state trial judges; they may not require the observance of any special procedures except when neces sary to assure compliance with the dictates of the Federal Constitution. Accordingly, the Court of Appeals erred when it directed the state trial judge to provide an explanation of the apparent inconsistency in his acquittal of Robinson and his conviction of respondent without first determining whether an inexplicably inconsistent verdict would be unconstitutional. II Inconsistency in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, Dunn v. United States, 284 U. S. 390 (1932), and also with respect to verdicts that treat codefendants in a joint trial inconsistently," } ]

[ { "docid": "2804353", "title": "", "text": "See generally M. Rosenn, The Great Writ — A Reflection of Societal Change, 44 Ohio St.L.J. 337, 355-63 (1983). This fundamental change in the Court’s approach has significantly limited the availability of collateral review of criminal proceedings. A review of the applicable strictures reveals that, in the instant case, the district court erred in granting the petition for a writ of habeas corpus. A. The writ of habeas corpus is available only to persons held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). As stated by the Supreme Court, “[fjederal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982); Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). There is no federal right to a non-jury criminal trial. See Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 789,13 L.Ed.2d 630 (1965). Thus, as the district court in this case recognized, the state trial judge’s denial of a bench trial “does not implicate any federal constitutional rights.” Moreover, petitioner questions neither the fairness of his trial nor the constitutionality of the trial court’s decision. The “wrong” in this case, according to the district court, occurred at the appellate level. The Pennsylvania Supreme Court, in approving the trial judge’s decision and holding that no reliance was placed on the unconstitutional statute, found that the trial judge had exercised the discretion granted him by Pa.R.Crim.P. 1101. The judge, according to his post-trial opinion, had denied petitioner a bench trial because of the judge’s awareness of petitioner’s criminal record and, the case having been designated “a career criminal case” by the prosecutor, the great likelihood that the judge would have to pass on the defendant’s prior criminal record. He therefore concluded that the trier of fact should be insulated from evidence of the defendant’s prior criminal record. The supreme court held that this was a proper exercise of discretion. See 500" }, { "docid": "9872542", "title": "", "text": "be deemed exhausted but procedurally defaulted. Even if the claim were exhausted, the Court would not find that it provides a basis for habeas relief. When a habeas corpus petitioner alleges error as to the trial court’s evidentiary rulings, the task of the federal court is to determine whether the petitioner was deprived of his right to a fundamentally fair trial. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.1988). Even an erroneous evidentiary ruling by a state trial court will not entitle the petitioner to habeas corpus relief unless the error was of a federal constitutional dimension. Id.; see also Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”) (citations omitted). Here, it ap pears that the trial court was well within its discretion as a matter of state law in admitting Chucho’s testimony. See, e.g., People v. Lynch, 85 A.D.2d 126, 128-29, 447 N.Y.S.2d 549 (1982) (“To sustain a conviction for selling drugs, it is not essential that the substance be produced in court. Witnesses, through whose testimony the precise identification of the drug is sought, as in the instant case, are essentially expert witnesses. Such a witness may be qualified to speak from actual experience, from observation or from study and must be shown to be qualified as an expert on the particular subject concerning which he is called upon to testify. An expert who bases his opinion upon facts of which he has personal knowledge must first testify to these facts before expressing his opinion[.]”) (internal citations omitted). Chucho testified that he was a heroin addict who consumed eight to nine bags of heroin every day for about one year, that he was familiar with the effects of heroin, and that he had used heroin of different strengths. Chucho said that Cruz had given him ten bundles of heroin and that, after sniffing four of them, he got high. New York intermediate appellate courts have sustained drug convictions based on the" }, { "docid": "22494181", "title": "", "text": "that \"[t]here is no federal general common law\" and \"[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.\" Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). These precedents do not support requiring the States to apply the exclusionary rule. As explained, the exclusionary rule is not rooted in the Constitution or a federal statute. This Court has repeatedly rejected the idea that the rule is in the Fourth and Fourteenth Amendments, expressly or implicitly. See Davis, 564 U.S., at 236, 131 S.Ct. 2419 ; Leon, 468 U.S., at 905-906, 104 S.Ct. 3405 ; cf. Ziglar v. Abbasi, 582 U.S. ----, ----, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (explaining that reading implied remedies into the Constitution is \"a 'disfavored' judicial activity\"). And the exclusionary rule does not implicate any of the special enclaves of federal common law. It does not govern the sovereign duties of the United States or disputes of an interstate or international character. Instead, the rule governs the methods that state police officers use to solve crime and the procedures that state courts use at criminal trials-subjects that the Federal Government generally has no power to regulate. See United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (explaining that \"[t]he regulation\" and \"vindication\" of intrastate crime \"has always been the province of the States\"); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (\"Federal courts hold no supervisory authority over state judicial proceedings\"). These are not areas where federal common law can bind the States. In sum, I am skeptical of this Court's authority to impose the exclusionary rule on the States. We have not yet revisited that question in light of our modern precedents, which reject Mapp 's essential premise that the exclusionary rule is required by the Constitution. We should do so. Petitioner had a photo on his Facebook profile of a motorcycle that resembled the unusual" }, { "docid": "7158175", "title": "", "text": "Mayhem Under Wisconsin Law The only basis for granting federal habeas relief is a violation of federal statutory or constitutional law. Mosley v. Moran, 798 F.2d 182, 185 (7th Cir.1986). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). The ultimate question before us, then, is not whether the mayhem instruction given at Cole’s trial was erroneous as a matter of state law, but whether it deprived Cole of any federally-protected right. Cole maintains that the Constitution protects him from being convicted upon an instruction that fails to inform the jury of an essential element of the offense charged. This is, of course, a federal law question, but it is based on a particular understanding of Wisconsin law. Before reaching the merits of Cole’s constitutional claim, therefore, we must determine whether his view of Wisconsin law is correct; that is, did Wisconsin law at the time of Cole’s offense require that a mayhem conviction be supported by proof of great bodily harm? A. The Mayhem Statute On its face, the Wisconsin mayhem statute says nothing about great bodily harm. Section 940.21 of the Wisconsin Statutes provides that “Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another, is guilty of a class B felony.” Our inquiry is not confined to the language of the statute, however. Under Wisconsin law, an appellate court’s construction of a statute becomes as much a part of the law as if the legislature had enacted it. Champlin v. State, 84 Wis.2d 621, 267 N.W.2d 295 (1978); State ex rel. Klinger & Schilling v. Baird, 56 Wis.2d 460, 202 N.W.2d 31 (1972). Moreover, an officially published opinion of the Wisconsin Court of Appeals has statewide precedential effect. Wis. Stats. § 752.41(2). These rules are binding on us as well, for “State courts are the ultimate expositors of their own states’ laws and federal courts entertaining petitions" }, { "docid": "12587511", "title": "", "text": "your Honor is in error. THE COURT: Application is denied. I think it was more of a form of argument than anything else, and it is simply his characterization of the testimony that is presented to the jury which he has a right to do. Tr. 742-43. In response to this ground of the petition respondent contends that petitioner has failed to exhaust his state remedies because he failed to alert the Appellate Division to the federal constitutional nature of his claim. The federal habeas corpus statute, 28 U.S.C. § 2254, requires a person in state custody to exhaust his state remedies before seeking federal habeas corpus review. This rule is based on considerations of comity between the federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners’ federal constitu tional rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). Thus, exhaustion requires a petitioner to have presented to the state courts the same federal constitutional claims, legally and factually, he raises in his petition to the federal court so that the state courts will have had the initial opportunity to pass on them. Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512-13; Daye v. Attorney General, etc., 696 F.2d at 191. See also McGann v. State of New York, 870 F.2d 908, 910 (2d Cir.1989); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989). Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982), a habeas petitioner] must put state courts on notice that they are to decide federal constitutional claims. See, e.g., Daye, 696 F.2d at 192. It is not necessary for a habeas petitioner to cite “book and verse”" }, { "docid": "2804352", "title": "", "text": "to a magistrate who unequivocally found that the record did not support the trial judge’s post-trial statement for denying the defendant a non-jury trial. He concluded, however, that an erroneous interpretation of state law by a state court did not constitute a denial of due process rising to the level of a federal question. He therefore recommended that the petition for habeas corpus be denied. The district court, on the other hand, rejected the magistrate’s legal con elusion and granted the writ. At the same time, the district court noted that the reasons offered in the trial judge’s opinion did not agree with the reasons he gave at the time he denied defendant’s motion for a non-jury trial. The district court further concluded that the state supreme court’s reliance on a post-trial opinion which contradicts the trial transcript is a violation of due process. The Commonwealth appealed. II. During the past decade, the United States Supreme Court has moved away from an expansive view of habeas corpus relief and applied numerous strictures to the writ. See generally M. Rosenn, The Great Writ — A Reflection of Societal Change, 44 Ohio St.L.J. 337, 355-63 (1983). This fundamental change in the Court’s approach has significantly limited the availability of collateral review of criminal proceedings. A review of the applicable strictures reveals that, in the instant case, the district court erred in granting the petition for a writ of habeas corpus. A. The writ of habeas corpus is available only to persons held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). As stated by the Supreme Court, “[fjederal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982); Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). There is no federal right to a non-jury criminal trial. See Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 789,13 L.Ed.2d 630 (1965). Thus," }, { "docid": "8136162", "title": "", "text": "writ. We disagree. Our right to review State court proceedings is “the narrow one of due process, and not the broad exercise of supervisory power that [we] would possess in regard to [our] own trial court.” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (quoting DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir. 1973) ). Federal courts may intervene in State court proceedings “only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). In reviewing Assistant District Attorney Schwed’s comments in this limited fashion, we must bear in mind that he “was entitled to marshall all the inferences which the evidence supported.” United States v. Wilner, 523 F.2d 68, 73 (2d Cir.1975); see United States v. DeFillo, 257 F.2d 835, 840 (2d Cir.1958), cert. denied, 359 U.S. 915, 79 S.Ct. 591, 3 L.Ed.2d 577 (1959). We should not confuse arguments fairly based on the evidence with expressions of the prosecutor’s personal belief. United States v. Canniff, supra, 521 F.2d at 571. The evidence concerning Gibilaro’s stated desire for sexual arousal was fairly in the record and was uncontradicted. In rebutting the asserted defense of mental incapacity, the prosecutor referred to Gibilaro’s admission that “it was the only way he could achieve sexual gratification”, and continued, “That is the reason he did it.” Nothing in the Constitution prohibits a prosecutor from thus arguing the thesis and merits of his case. See, e.g., United States v. Caldwell, 543 F.2d 1333, 1360-62 (D.C.Cir. 1974) , cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States v. Brown, 456 F.2d 293, 295 (2d Cir.), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972). Reversed." }, { "docid": "9872541", "title": "", "text": "qualifications to identify the substance as heroin, simply arguing that Chucho was not competent to be qualified as an expert witness. Essentially, Cruz is asserting that the trial court erred in admitting testimony by a witness who was not competent to testify as an expert; on direct appeal, appellate counsel cited only New York case law for this proposition. Thus, I am inclined to agree with respondent that Cruz did not “fairly present” this claim in federal constitutional terms to the state court for exhaustion purposes. However, the claim must be deemed exhausted, but proeedurally defaulted, because Cruz cannot return to state court to exhaust it. He has used the one direct appeal to which he is entitled, see N.Y. Court Rules § 500.10(a), and if he were to attempt to raise it in a collateral C.P.L. § 440.10 motion, the court would deny the claim since sufficient facts appeared on the record to have permitted the claim to have been raised on direct appeal. See N.Y.Crim. Proc. Law § 440.10(2)(c). Thus, the claim must be deemed exhausted but procedurally defaulted. Even if the claim were exhausted, the Court would not find that it provides a basis for habeas relief. When a habeas corpus petitioner alleges error as to the trial court’s evidentiary rulings, the task of the federal court is to determine whether the petitioner was deprived of his right to a fundamentally fair trial. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.1988). Even an erroneous evidentiary ruling by a state trial court will not entitle the petitioner to habeas corpus relief unless the error was of a federal constitutional dimension. Id.; see also Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”) (citations omitted). Here, it ap pears that the trial court was well within its discretion as a matter of state law in admitting Chucho’s testimony. See, e.g., People v. Lynch, 85 A.D.2d 126, 128-29, 447 N.Y.S.2d 549 (1982) (“To sustain" }, { "docid": "12651968", "title": "", "text": "the court correctly applied the law. Burrus v. Young, 808 F.2d 578, 580-81 (7th Cir.1986). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). On a petition for writ of habeas corpus, a federal court will not review evidentiary questions unless “there is a resultant denial of fundamental fairness or the denial of a specific constitutional right.” United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir.1982); see also Cramer v. Fahner, 683 F.2d 1376 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 509 (1982). Petitioner contends that the cumulative effect of the following three eviden-tiary rulings denied him a fundamentally fair trial: 1. The trial court’s exclusion of the state’s offer to dismiss; 2. the trial court’s exclusion of psychiatric testimony concerning Hecht’s character; and 3. the trial court’s admission of evidence of other crimes. This Court will not review the Wisconsin Court of Appeals’ interpretation of state law. Burrus, 808 F.2d at 581. 1. Offer to Dismiss The trial court ruled that Stomner’s counsel could not ask Detective Grann whether Grann, another detective and the deputy district attorney had made an offer to Stomner which he did not accept. According to Stomner, the offer was to dismiss the charges against him if he testified to a link or connection between Hecht and Wheeler. Stomner argued that the jury should have this information. The jurors could infer from it that Stomner was truthful when he declined the offer, since had Stomner been able to provide the link, he would have been a fool not to do so. State v. Stomner, 141 Wis.2d 973, 414 N.W.2d 318 (Wis.Ct.App.1987). The trial court determined that the evidence was inadmissible hearsay concerning a prior consistent statement. The state has the power to apply evidentiary rules which serve the interests of fairness and reliability. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). In addition," }, { "docid": "22637560", "title": "", "text": "point, the Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision. 166 F. 3d, at 687-692. Relying on the fact that we have created several exceptions to Miranda’s warnings requirement and that we have repeatedly referred to the Miranda warnings as “prophylactic,” New York v. Quarles, 467 U. S. 649, 653 (1984), and “not themselves rights protected by the Constitution,” Michigan v. Tucker, 417 U. S. 438, 444 (1974), the Court of Appeals concluded that the protections announced in Miranda are not constitutionally required. 166 F. 3d, at 687-690. We disagree with the Court of Appeals’ conclusion, although we concede that there is language in some of our opinions that supports the view taken by that court. But first and foremost of the factors on the other side — that Miranda is a constitutional decision — is that both Miranda and two of its companion cases applied the rule to proceedings in state courts — to wit, Arizona, California, and New York. See 384 U. S., at 491-494, 497-499. Since that time, we have consistently applied Miranda’s rule to prosecutions arising in state courts. See, e. g., Stansbury v. California, 511 U. S. 318 (1994) (per curiam); Minnick v. Mississippi, 498 U. S. 146 (1990); Arizona v. Roberson, 486 U. S. 675 (1988); Edwards v. Arizona, 451 U. S. 477, 481-482 (1981). It is beyond dispute that we do not hold a supervisory power over the courts of the several States. Smith v. Phillips, 455 U. S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”); Cicenia v. Lagay, 357 U. S. 504, 508-509 (1958). With respect to proceedings in state courts, our “authority is limited to enforcing the commands of the United States Constitution.” Mu’Min v. Virginia, 500 U. S. 415, 422 (1991). See also Harris v. Rivera, 454 U. S. 339, 344-345 (1981) (per curiam) (stating that “[fjederal judges . . . may not require the ob servance of any special procedures” in state courts “except" }, { "docid": "22223025", "title": "", "text": "similar requirement of Fed. Rule Crim. Proc. 5(a)); Miller v. United States, 357 U. S. 301 (1958) (suppressing evidence obtained incident to an arrest that violated 18 U. S. C. § 3109). Unless required to do so by the Convention itself, they argue, we cannot direct Oregon courts to exclude Sanchez-Llamas’ statements from his criminal trial. To the extent Sanchez-Llamas argues that we should invoke our supervisory authority, the law is clear: “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” Dickerson v. United States, 530 U. S. 428, 438 (2000); see also Smith v. Phillips, 455 U. S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”). The cases on which Sanchez-Llamas principally relies are inapplicable in light of the limited reach of our supervisory powers. Mallory and McNabb plainly rest on our supervisory authority. Mallory, supra, at 453; McNabb, supra, at 340. And while Miller is not clear about its authority for requiring suppression, we have understood it to have a similar basis. See Ker v. California, 374 U. S. 23, 31 (1963). We also agree with the State of Oregon and the United States that our authority to create a judicial remedy applicable in state court must lie, if anywhere, in the treaty itself. Under the Constitution, the President has the power, “by and with the Advice and Consent of the Senate, to make Treaties.” Art. II, § 2, cl. 2. The United States ratified the Convention with the expectation that it would be interpreted according to its terms. See 1 Restatement (Third) of Foreign Relations Law of the United States § 325(1) (1986) (“An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose”). If we were to require suppression for Article 36 violations without some authority in the Convention, we would in effect be supplementing those terms by" }, { "docid": "8136161", "title": "", "text": "achieve sexual gratification. That is the reason he did it. The only way he could become aroused was to take a knife to a woman and do it. In an oral decision which followed a hearing on the habeas corpus petition, Chief Judge Weinstein held that the reading of the prosecutor’s Wade-Huntley testimony at the request of defense counsel was not a constitutional violation. We agree. See Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1696, 48 L.Ed.2d 126 (1976). He also held that most of the above-quoted argument by the prosecutor was not such a constitutional violation as would warrant habeas corpus relief. Again, we agree. See United States v. Canniff, 521 F.2d 565, 571 (2d Cir.1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1976). However, focusing solely on the sentence, “That is the reason he did it”, Chief Judge Weinstein concluded that this was an expression of personal opinion which tainted the entire trial to, such an extent as to mandate the grant of a section 2254 writ. We disagree. Our right to review State court proceedings is “the narrow one of due process, and not the broad exercise of supervisory power that [we] would possess in regard to [our] own trial court.” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (quoting DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir. 1973) ). Federal courts may intervene in State court proceedings “only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). In reviewing Assistant District Attorney Schwed’s comments in this limited fashion, we must bear in mind that he “was entitled to marshall all the inferences which the evidence supported.” United States v. Wilner, 523 F.2d 68, 73 (2d Cir.1975); see United States v. DeFillo, 257 F.2d 835, 840 (2d Cir.1958), cert. denied, 359 U.S. 915, 79 S.Ct. 591, 3 L.Ed.2d 577 (1959). We should not confuse arguments fairly based on the evidence with expressions of the prosecutor’s personal belief. United States v." }, { "docid": "9766905", "title": "", "text": "so desired.’ ”). As habeas cases arising out of state criminal trials, Weeks and Beardslee are based on the due process clause of the Constitution. By contrast, the case before us arises out of a federal criminal trial where we exercise supervisory power as well as enforce the due process clause. Compare Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”), with McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943) (“the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity”). We take it as a given that an action by a district court can be consistent with the due process clause but nonetheless improper and reversible under the federal supervisory power. Weeks and Beardslee are nevertheless instructive for they draw the outer constitutional boundary of what a court may do in response to a jury’s questions. If the district court transgressed the due process line drawn in Weeks and Beardslee, it necessarily transgressed the boundary we police under our supervisory power. We find this case comfortably within the boundary drawn by Weeks and Beardslee. In Weeks, the court emphasized not only that the original instruction was proper and that the jury’s attention was directed to the appropriate portion of the instruction, but also that the jury would have felt free to ask again if it had felt the need to do so: “This particular jury demonstrated that it was not too shy to ask questions, suggesting that it would have asked another if it felt the judge’s response unsatisfactory.” 528 U.S. at 235-36, 120 S.Ct. 727. In Beardslee, by contrast, we emphasized that the trial judge, in effect, said that he would not answer any more questions and directed the jury not to ask. 327 F.3d at 813. In the case before us, the district court did not direct the jury’s attention to the specific relevant" }, { "docid": "7158174", "title": "", "text": "reliance on Wisconsin’s contemporaneous objection rule. During proceedings in the district court, the Attorney General simply ignored the issue; in this court, the Attorney General has gone further, explaining in his brief that “the state believes it appropriate for this court to consider the merits of Cole’s challenge to the instruction.” As we explained in Barrera, there is no reason why a state should not be able to waive its own forfeiture rule as readily through its executive branch as through its courts. The state is free to allocate responsibilities between the branches of its government in the best way it sees fit. Any other rule would subvert the principle of federalism Wainwright is designed to protect. Barrera, 794 F.2d at 1269. Of course, this approach also implies that the state may retract the Attorney General’s authority to waive reliance on the state’s forfeiture rule. Id. But if the state wants a federal court decision in a case that might otherwise be barred from habeas review under Wainwright, it can have one. III. Elements of Mayhem Under Wisconsin Law The only basis for granting federal habeas relief is a violation of federal statutory or constitutional law. Mosley v. Moran, 798 F.2d 182, 185 (7th Cir.1986). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). The ultimate question before us, then, is not whether the mayhem instruction given at Cole’s trial was erroneous as a matter of state law, but whether it deprived Cole of any federally-protected right. Cole maintains that the Constitution protects him from being convicted upon an instruction that fails to inform the jury of an essential element of the offense charged. This is, of course, a federal law question, but it is based on a particular understanding of Wisconsin law. Before reaching the merits of Cole’s constitutional claim, therefore, we must determine whether his view of Wisconsin law is correct; that is, did Wisconsin law at the time of Cole’s offense" }, { "docid": "9766904", "title": "", "text": "also in addition to your request concerning an instruction, there is and can be no explanation of the instructions. You just have to work them out as they are printed.... You are going to have to consider the instructions as a whole, as one of those instructions will be and did advise you, some of the instructions will apply, some of the instructions will not. All of those instructions have to be considered as a whole. Do the best you can with them. Id. The jury returned a guilty verdict that afternoon. We reversed, holding that the judge’s response violated the defendant’s due process right to a fair trial. Id. at 813. We reasoned that the judge’s response was not only a refusal to answer the jury’s question, but tantamount to an instruction to not ask again. Id. (“Given the categorical nature of the admonition that there ‘is and can be no explanation of the instructions,’ we disagree with the district court’s conclusion that ‘the jury was not precluded from asking additional questions if it so desired.’ ”). As habeas cases arising out of state criminal trials, Weeks and Beardslee are based on the due process clause of the Constitution. By contrast, the case before us arises out of a federal criminal trial where we exercise supervisory power as well as enforce the due process clause. Compare Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”), with McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943) (“the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity”). We take it as a given that an action by a district court can be consistent with the due process clause but nonetheless improper and reversible under the federal supervisory power. Weeks and Beardslee are nevertheless instructive for they draw the outer constitutional boundary of what a court may do in" }, { "docid": "22223024", "title": "", "text": "then, Sanchez-Llamas argues only that suppression is required because it is the appropriate remedy for an Article 36 violation under United States law, and urges us to require suppression for Article 36 violations as a matter of our “authority to develop remedies for the enforcement of federal law in state-court criminal proceedings.” Reply Brief for Petitioner in No. 04-10566, p. 11. For their part, the State of Oregon and the United States, as amicus curiae, contend that we lack any such authority over state-court proceedings. They argue that our cases suppressing evidence obtained in violation of federal statutes are grounded in our supervisory authority over the federal courts—an authority that does not extend to state-court proceedings. Brief for Respondent in No. 04-10566, pp. 42-43; Brief for United States 32-34; see McNabb v. United States, 318 U. S. 332, 341 (1943) (suppressing evidence for violation of federal statute requiring persons arrested without a warrant to be promptly presented to a judicial officer); Mallory v. United States, 354 U. S. 449 (1957) (suppressing evidence for violation of similar requirement of Fed. Rule Crim. Proc. 5(a)); Miller v. United States, 357 U. S. 301 (1958) (suppressing evidence obtained incident to an arrest that violated 18 U. S. C. § 3109). Unless required to do so by the Convention itself, they argue, we cannot direct Oregon courts to exclude Sanchez-Llamas’ statements from his criminal trial. To the extent Sanchez-Llamas argues that we should invoke our supervisory authority, the law is clear: “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” Dickerson v. United States, 530 U. S. 428, 438 (2000); see also Smith v. Phillips, 455 U. S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”). The cases on which Sanchez-Llamas principally relies are inapplicable in light of the limited reach of our supervisory powers. Mallory and McNabb plainly rest on our supervisory authority. Mallory, supra, at 453; McNabb, supra, at 340. And while Miller is not clear about" }, { "docid": "12651967", "title": "", "text": "and Wheeler’s defenses conflicted but were not mutually antagonistic. The fact that Stomner denied the existence of a conspiracy while Wheeler admitted to an agreement to scare Hudson did not unduly prejudice Stomner. Although Wheeler’s defense caused some damage to Stomner’s, more damaging blows came as a result of the prosecution’s contention that both were involved in a conspiracy to commit murder. Moreover, any evidence offered by Wheeler was merely cumulative to that presented by the state. In separate trials, the prosecution likely would have been able to present most of Wheeler’s testimony in the trial against Stomner. No prejudice derives from the admission of evidence at a joint trial when the same evidence would be admissible at separate trials. United States v. Sababu, 891 F.2d 1308, 1331 (7th Cir.1989). The court did not abuse its discretion in denying the severance motion. B. Evidentiary Rulings The admissibility of evidence in a state court proceeding is primarily a matter of state law and a federal court will not review the state court rulings to determine whether the court correctly applied the law. Burrus v. Young, 808 F.2d 578, 580-81 (7th Cir.1986). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). On a petition for writ of habeas corpus, a federal court will not review evidentiary questions unless “there is a resultant denial of fundamental fairness or the denial of a specific constitutional right.” United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir.1982); see also Cramer v. Fahner, 683 F.2d 1376 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 509 (1982). Petitioner contends that the cumulative effect of the following three eviden-tiary rulings denied him a fundamentally fair trial: 1. The trial court’s exclusion of the state’s offer to dismiss; 2. the trial court’s exclusion of psychiatric testimony concerning Hecht’s character; and 3. the trial court’s admission of evidence of other crimes. This Court will not review the" }, { "docid": "22494182", "title": "", "text": "or disputes of an interstate or international character. Instead, the rule governs the methods that state police officers use to solve crime and the procedures that state courts use at criminal trials-subjects that the Federal Government generally has no power to regulate. See United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (explaining that \"[t]he regulation\" and \"vindication\" of intrastate crime \"has always been the province of the States\"); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (\"Federal courts hold no supervisory authority over state judicial proceedings\"). These are not areas where federal common law can bind the States. In sum, I am skeptical of this Court's authority to impose the exclusionary rule on the States. We have not yet revisited that question in light of our modern precedents, which reject Mapp 's essential premise that the exclusionary rule is required by the Constitution. We should do so. Petitioner had a photo on his Facebook profile of a motorcycle that resembled the unusual motorcycle involved in the prior highway chase. See ante, at 1675 - 1676 (majority opinion). Rhodes suspected the motorcycle was stolen based on a conversation he had with the man who had sold the motorcycle to petitioner. See App. 57-58. Indeed, I believe that the First Congress implicitly made the same judgment in enacting the statute on which Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), relied when the motor-vehicle exception was first recognized. Since the First Congress sent the Bill of Rights to the States for ratification, we have often looked to laws enacted by that Congress as evidence of the original understanding of the meaning of those Amendments. See, e.g., id., at 150-151, 45 S.Ct. 280 ; Town of Greece v. Galloway, 572 U.S. ----, ---- - ----, 134 S.Ct. 1811, 1838, 188 L.Ed.2d 835 (2014) ; United States v. Villamonte-Marquez, 462 U.S. 579, 585-586, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) ; United States v. Ramsey, 431 U.S. 606, 616-617, 97 S.Ct. 1972, 52 L.Ed.2d 617" }, { "docid": "22637561", "title": "", "text": "491-494, 497-499. Since that time, we have consistently applied Miranda’s rule to prosecutions arising in state courts. See, e. g., Stansbury v. California, 511 U. S. 318 (1994) (per curiam); Minnick v. Mississippi, 498 U. S. 146 (1990); Arizona v. Roberson, 486 U. S. 675 (1988); Edwards v. Arizona, 451 U. S. 477, 481-482 (1981). It is beyond dispute that we do not hold a supervisory power over the courts of the several States. Smith v. Phillips, 455 U. S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”); Cicenia v. Lagay, 357 U. S. 504, 508-509 (1958). With respect to proceedings in state courts, our “authority is limited to enforcing the commands of the United States Constitution.” Mu’Min v. Virginia, 500 U. S. 415, 422 (1991). See also Harris v. Rivera, 454 U. S. 339, 344-345 (1981) (per curiam) (stating that “[fjederal judges . . . may not require the ob servance of any special procedures” in state courts “except when necessary to assure compliance with the dictates of the Federal Constitution”). The Miranda opinion itself begins by stating that the Court granted certiorari “to explore some facets of the problems ... of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow” 384 U. S., at 441-442 (emphasis added). In fact, the majority opinion is replete with statements indicating that the majority thought it was announcing a constitutional rule. Indeed, the Court’s ultimate conclusion was that the unwarned confessions obtained in the four cases before the Court in Miranda “were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.” Id., at 491. Additional support for our conclusion that Miranda is constitutionally based is found in the Miranda Court’s invitation for legislative action to protect the constitutional right against coerced self-incrimination. After discussing the “compelling pressures” inherent in custodial police interrogation, the Miranda Court concluded that, “[i]n order to combat these pressures and to permit" }, { "docid": "3876917", "title": "", "text": "or interpretation of state law on a petition for habeas unless such application or interpretation violates federal law. As the Supreme Court recently declared: We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.’ ... Today, we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (citations omitted); see also Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir.1993) (same); Springer v. Coleman, 998 F.2d 320, 324 (5th Cir.1993) (“As a Federal Court we may find that the state court’s application of state ... law violates due process, but we may not interfere with the state court’s application of state law.”); Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.1986) (“We do not sit as a ‘super’ state supreme court.”). Based on the foregoing, the Colorado Court of Appeals’ decimation to apply its state’s inconsistent-verdict law does not run afoul of federal law. B. Bowser also alleges that the prosecutor violated his due process rights by expressing his personal opinions during closing argument. However, federal courts hold no supervisory powers over state judicial proceedings. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). As the district court correctly stated, “[t]o raise a federal constitutional question, a prosecutor’s statements must be ‘so egregious as to render the entire trial fundamentally unfair.’ Soap v. Carter, 632 F.2d 872[, 876] (10th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981)” (quotation and citation omitted). Order Denying Pet. for Writ of Habeas Corpus at 3. Although arguably improper, the prosecutor’s repeated use of “believe” and “think” in his closing argument did not “demonstrate [any] improper reliance upon outside evidence, [any] misstatement or misrepresentation of the facts, [or any] prejudice to” Bowser. Id. at 4 (citing" } ]

[ { "docid": "12090785", "title": "", "text": "excuse Wahtola for cause. III. Plaintiff next contends the district court erred in excluding a summary of documents which purported to show that “older employees were placed at the bottom of ranking lists while younger, less experienced employees were placed at the top.” See Fed.R.Evid. 1006. We review the district court’s exclusion of a summary under Rule 1006 for an abuse of discretion. Harris Market Research v. Marshall Marketing, 948 F.2d 1518, 1525 (10th Cir.1991). At trial, the district court conducted an extensive bench conference on the admissibility of the summary. In response to questioning by the court, Plaintiffs counsel was unable to explain to the court the meaning of the “value rank” category contained in the summary. The district court responded, “Well, I would expect you to be able to explain it while we’re discussing it. If you don’t know what’s in an exhibit, I’m not going to receive it.” The district court then excluded the summary. A summary of records may be properly admitted into evidence provided “all of the records from which it is drawn are otherwise admissible.” Harris Market, 948 F.2d at 1525 (quoting State Office Sys., Inc. v. Olivetti Corp. of America, 762 F.2d 843, 845 (10th Cir.1985)). However, “[b]efore submitting summaries or charts for a jury’s inspection, ... [c]are must be taken to insure [the] summaries accurately reflect the contents of the underlying documents.” United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984). In light of Plaintiffs counsel’s inability to ex plain relevant portions of the summary to the district court, the district court was unable to assure itself of the accuracy of the information contained therein, and therefore did not abuse its discretion in excluding Plaintiffs summary. IV. Finally, Plaintiff contends the district court erred in failing to grant a mistrial based upon alleged judicial misconduct. Plaintiffs allegations of judicial misconduct consist of several incidents during the course of the trial. Plaintiffs counsel contends the district court made certain comments in front of the jury that portrayed them as incompetent and also treated witnesses in a harsh and abrasive manner. We review" } ]

[ { "docid": "17213136", "title": "", "text": "AFD Fund v. United States, 61 Fed.Cl. 540, 546 (2004) (“A proponent of a summary of evidence must properly authenticate it by satisfying four requirements. First, the summarized writings must be so voluminous so as to be unable to be conveniently examined in court. Second, the underlying evidence must itself be admissible. Third, the original or copies of the summarized writings must be made available to the opposing party. And, fourth, the proposed summary (or chart or calculation) must accurately summarize (or reflect) the underlying document(s) and only the underlying document(s)” (internal citations omitted)). The Federal Circuit has noted that “the rules recognize that the preparation of summaries from other documents carries risks of error or distortion that must be guarded against by giving the opposing party an opportunity to review and object to the underlying documents.” Conoco, 99 F.3d at 393; accord Air Safety, Inc. v. Roman Catholic Archbishop, 94 F.3d 1, 7-9 (1st Cir.1996) (recognizing that under Rule 1006 a party has a “guaranteed access [to documents underlying a summary] designed to give the opponent the ability to check the summary’s accuracy and prepare for cross-examination.”); United States v. Rangel, 350 F.3d 648, 651 (7th Cir.2003) (“A ‘reasonable time and place’ [under Fed. R. Evid. 1006] has been understood to be such that the opposing party has adequate time to examine the records to check the accuracy of the summary.” (internal citations omitted)). In Air Safety, the First Circuit upheld the trial court’s exclusion of summary exhibits and explained the requisites for complying with Rule 1006’s provision that the underlying materials in a proposed summary exhibit be “made available”: [T]o satisfy the “made available” requirement, a party seeking to use a summary under Rule 1006 must identify its exhibit as such, provide a list or description of the documents supporting the exhibit, and state when and where they may be reviewed. Id. at 8. Moreover, the Court of Appeals favorably cited the District Court’s explication of the “made available” requirement: I don’t think that it is enough to say that the documents have been available or could have" }, { "docid": "17213135", "title": "", "text": "from springing summaries of thousands of documents on the opposing party so late in the day that the party can’t check their accuracy against the summarized documents before trial.” Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745 (7th Cir.2005). Rule 1006 of the Fed. R. Evid. governs the admission of summaries of records. The Rule provides: Rule 1006. Summaries The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. In Conoco Inc. v. DOE, 99 F.3d 387, 393 (Fed.Cir.1996), the Federal Circuit recognized that Rule 1006 permits the introduction of summaries of documents, but only if the records from which the summaries were prepared are admissible and are made available to the opposing party for examination or copying. See generally, AFD Fund v. United States, 61 Fed.Cl. 540, 546 (2004) (“A proponent of a summary of evidence must properly authenticate it by satisfying four requirements. First, the summarized writings must be so voluminous so as to be unable to be conveniently examined in court. Second, the underlying evidence must itself be admissible. Third, the original or copies of the summarized writings must be made available to the opposing party. And, fourth, the proposed summary (or chart or calculation) must accurately summarize (or reflect) the underlying document(s) and only the underlying document(s)” (internal citations omitted)). The Federal Circuit has noted that “the rules recognize that the preparation of summaries from other documents carries risks of error or distortion that must be guarded against by giving the opposing party an opportunity to review and object to the underlying documents.” Conoco, 99 F.3d at 393; accord Air Safety, Inc. v. Roman Catholic Archbishop, 94 F.3d 1, 7-9 (1st Cir.1996) (recognizing that under Rule 1006 a party has a “guaranteed access [to documents underlying a summary] designed to give" }, { "docid": "22474153", "title": "", "text": "not error. Judge Caulfield apparently concluded that the reference to a writing by Dr. Bate-man during the examination of plaintiffs’ own expert constituted a sufficiently changed circumstance as to justify a limited response. We will not second guess the exercise of the considerable discretion allowed her, particularly where the result was to allow limited testimony on an issue (plaintiffs’ damages) which the jury never reached. B. Admission of Defendants’ Summary Exhibits Plaintiffs challenge the admission of two of defendants’ summary exhibits on grounds that defendants failed to provide plaintiffs with the materials underlying those exhibits. Evidentiary rulings are reviewed for an abuse of discretion and should not be reversed absent some prejudice. City of Long Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir.1995). Federal Rule of Evidence 1006 governs the admissibility of summary exhibits. It provides in relevant part: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time or place. Fed.R.Evid. 1006. A proponent of a summary exhibit must establish a foundation that (1) the underlying materials on which the summary exhibit is based are admissible in evidence, and (2) those underlying materials were made available to the opposing party for inspection. Paddock v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir.1984). The purpose of the availability requirement is “to give the opposing party an opportunity to verify the reliability and accuracy of the summary prior to trial.” Id. at 1261. Accord Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir.1993) (under adversary system, opposing party entitled to see materials that form basis for summary). Where a party fails to make available materials underlying a summary exhibit, that summary exhibit is inadmissible. United States v. Miller, 771 F.2d 1219, 1238 (9th Cir.1985) (summaries inadmissible under Federal Rule of Evidence 1006 where government failed to provided defendants with copy of underlying documents before summary was introduced" }, { "docid": "22566773", "title": "", "text": "contained in the government’s chart meet the relevance standards of Rule 401 for admissibility. Although the underlying evidence was properly admitted, defendants claim that the summaries unfairly called attention to certain telephone calls and prejudiced them. Rule 1006 provides: The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. Before submitting summaries or charts for a jury’s inspection, the court must find there is sufficient factual basis for admitting them and that possible prejudice or confusion does not outweigh their usefulness in clarifying the evidence. J. Weinstein and M. Berger, Weinstein’s Evidence § 1006 (1983). Charts and summaries are, for instance, inadmissible if they contain information not present in the original or duplicate materials on which they are based. See, e.g., Pritchard v. Liggett and Myers Tobacco Co., 295 F.2d 292, 301 (3d Cir.1961); Standard Oil of California v. Moore, 251 F.2d 188, 233 (9th Cir.1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). Care must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent’s proof or create the impression that disputed facts have been conclusively established or that inferences have been directly proved. See J. Weinstein and M. Berger, Weinstein’s Evidence § 1006 [07] (1983). Prior to the admission of the challenged summaries, the trial court conduct ed an extensive voir dire on the charts’ admissibility and excluded the charts because they contained argumentative inferences intermingled with direct evidence, i.e., the names of the coconspirators who inferentially made or received the calls rather than the person or company in whose name the phones were registered. The government modified the charts and again sought to introduce evidence of phone traffic between residences, places of business and public places" }, { "docid": "10513823", "title": "", "text": "objection, for the limited purpose of showing that White should have known in 1952 that dienestrol could cause cancer. Tr. at 269. A trial judge may admit a summary of voluminous writings into evidence. Fed.R.Evid. 1006. Admission of summaries is a matter that rests within the sound discretion of the judge. Baines v. United States, 426 F.2d 833, 840 (5th Cir. 1970). See also Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 300 (3d Cir. 1961). Before a summary is admitted, the proponent must lay a proper foundation as to the admissibility of the material that is summarized and show that the summary is accurate. Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d at 301. Needham failed to satisfy either of these requirements. First, Needham failed to lay a proper foundation as to the admissibility of the articles. The article titles were admitted for the limited purpose of showing that White should have known that dienestrol caused cancer because numerous articles published before 1952 tended to show a relationship between estrogen and cancer. Given this purpose, the articles were relevant only if they discussed a relationship between estrogen and cancer. Dr. Shimkin, the foundational witness, testified that he had not read all of the articles. Tr. at 243. He further testified that some titles on the list did not discuss the relationship between estrogen and cancer at all. Tr. at 254, 258, 265, 267. Dr. Shimkin’s testimony failed to show that all the titles were relevant for the limited purpose of demonstrating notice of the relationship between estrogen and cancer. In addition, Needham failed to show that the list of articles accurately summarized the material contained in the original articles. As a rule, one should not assume that titles are an accurate summation of article contents. Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d at 301. Since Dr, Shimkin had not read some of the articles, he was unable to testify that the list of titles accurately reflected and summarized what was contained in the articles. Because Needham failed to lay an adequate foundation or to" }, { "docid": "8525334", "title": "", "text": "they left that office. Sawyer contends that these charts were admitted on an insufficient foundation and that they were misleading, argumentative and prejudicial. Federal Rule of Evidence 1006 provides, in pertinent part: The contents of voluminous writings ... which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals or duplicates shall be made available for examination or copying, or both, by [the other party]. Before admitting such evidentiary presentations, the court must first ensure that each is grounded upon a “sufficient factual basis,” i.e., upon independently established evidence in the record, and that “possible prejudice or confusion does not outweigh their usefulness in clarifying the evidence.” United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984) (citing J. Weinstein & M. Berger, Weinstein’s Evidence § 1006 (1983)); see United States v. Nivica, 887 F.2d 1110, 1125 (1st Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990); United States v. Sorrentino, 726 F.2d 876, 884 (1st Cir.1984). When a court admits such summaries, [c]are must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent’s proof or create the impression that disputed facts have been conclusively established or that inferences have been directly proved. Drougas, 748 F.2d at 25 (citing Weinstein’s Evidence, supra § 1006). We review the admission of summaries for abuse of discretion. Nivica, 887 F.2d at 1126. Sawyer contends that the district court improperly admitted the summaries because they did not include evidence of his expenditures on legislators before and after the time period covered in the summaries, or his expenditures of personal funds. He argues that this was unduly misleading because it created a “false impression” as to the date the alleged conspiracy began, and falsely implied that the expenditures ended after the three named representatives left office. We disagree. The summaries were based on evidence that was already independently admitted and that was relevant to Sawyer’s questionable expenditures during the indictment period. Sawyer" }, { "docid": "20452301", "title": "", "text": "conducted business, according to a regular procedure, and for a routine business purpose. See United States v. Davis, 261 F.3d 1, 42 n. 37 (1st Cir.2001) (noting that for summary evidence to be admissible, the materials on which it is based also must be admissible in evidence); see also United States v. Loney, 959 F.2d 1332, 1341 (5th Cir.1992). Colón has two main arguments as to why the district court should not have considered the summary charts: (1) the summary graphs were never produced to Colón during the discovery process; and (2) an appropriate foundation to the charts was not properly laid because the individual who prepared the charts (i) was never announced as a witness in the case, (ii) prepared the charts in anticipation of litigation, and (iii) was a paralegal who lacked the requisite expertise to testify in support of their admission. Colon’s arguments are non-starters. Regarding Colon’s first argument, Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. See Fed.R.Evid. 1006 (“The originals [of the contents of the writings], or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.”). The circuits recognize this well-settled principle. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 7 & n. 14 (1st Cir.1996); see also United States v. Bakker, 925 F.2d 728, 736 (4th Cir.1991) (“The language of [Rule 1006] ... simply requires that the [original voluminous] material be made available to the other party.”); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir.1985) (Rule 1006 requires that “only the underlying documents, and not the summaries, must be made available to the opposing party”). Thus, Colon’s first argument as to the summary charts is incorrect: the Municipality had no obligation to provide the charts to Colón. Turning to Colon’s multi-faceted second argument, we first note that the paralegal who prepared the charts was announced to Colón. The same day on which the Municipality submitted its exhibits in support of its summary judgment motion, September 1," }, { "docid": "11371787", "title": "", "text": "Janatis’ fears. The court’s ruling limiting the charts’ use to rebuttal might only be tentative, but if not, it is too restrictive. The district court’s concern grew out of the parties’ conceptual confusion about how charts may be used at trial, which may have blurred an understanding by the court of their proper use. First, Rule 1006 is a rule to admit charts into evidence as a surrogate for underlying voluminous records that would otherwise be admissible into evidence. The Rule reads: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. The purpose of this Rule is to reduce the volume of written documents that are introduced into evidence by allowing in evidence accurate derivatives from the voluminous .documents. See United States v. Bakker, 925 F.2d 728, 736 (4th Cir.1991). To comply with this Rule, therefore, a chart summarizing evidence must be an accurate compilation of the voluminous records sought to be summarized. 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 8043, at 525 (1st ed.2000). Moreover, the records summarized must otherwise be admissible in evidence. 31 id. § 8043, at 521-22. While the Rule does not require that the underlying documentation actually be introduced into evidence, it does require that the documents be made available to the opposing party for examination and copying at a reasonable time and place. Fed. R.Evid. 1006. Finally, under the rule, the trial court can require that the underlying documents actually be brought to court. Id.; 31 Wright & Gold, supra, § 8042, at 519-20. The obvious import of these provisions is to afford a process to test the accuracy of the chart’s summarization. Because the underlying documents need not be introduced into evidence, the chart itself is admitted as evidence in order to give the jury evidence of" }, { "docid": "13125126", "title": "", "text": "court’s failure to give a limiting instruction about the other transactions was harmless error. D Next, Hemphill’s challenge to the government’s summary evidence is groundless. We review a trial court’s decision to admit summary charts for abuse of discretion. United States v. Lemire, 720 F.2d 1327, 1350 (D.C.Cir.1983). Rule 1006 of the Federal Rules of Evidence allows a party to introduce a chart summarizing “[t]he contents of voluminous writings ... which cannot conveniently be examined in court.” To be admissible, a chart must summarize documents so voluminous “as to make comprehension ‘difficult and ... inconvenient,’ ” although not necessarily “literally impossible”; the documents themselves must be admissible, although the offering party need not actually enter them; the party introducing the chart must make the underlying documents reasonably available for inspection and copying; and the chart must be “accurate and nonprejudicial.” United States v. Bray, 139 F.3d 1104, 1109-10 (6th Cir.1998). In addition, as part of the foundation for a chart, the witness who prepared the chart should introduce it. Id. at 1110. Hemphill contests the admissibility of the government’s charts on all four of these conditions, but we address only one of her arguments in detail. The rest turn on her misapprehension that the government must actually introduce the documents on which it bases a summary chart. To the contrary, the point of Rule 1006 is to avoid introducing all the documents. As long as a party has laid a foundation for the underlying documents, a chart summarizing them can itself be evidence under Rule 1006. Here, the government proffered certifications for the documents under Rule 902(11), and Hemphill’s counsel does not appear to have objected. In her most serious contention, Hemphill claims the charts were argumentative, prejudicial, and selective. In particular, she says Novak, the government auditor, used his accounting skills to prepare charts purposefully to show that Hemphill had a source of funds outside her regular income. But the fact that a non-expert witness, like Novak, prepared a chart or testified about it does not make the chart inadmissible. See United States v. Scales, 594 F.2d 558, 563" }, { "docid": "425719", "title": "", "text": "admission of summaries under Rule 1006 is committed to the sound discretion of the trial court.” United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 248 (1988). Under Rule 1006, the summary must be “accurate, authentic and properly introduced before it may be admitted into evidence.” United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946, 99 S.Ct. 2168, 60 L.Ed.2d 1049 (1979). Funtime contends that the district court erred because the summaries themselves were hearsay, and thus not admissible. The district court admitted the summaries under Fed.R.Evid. 803(8)(C), however Funtime argues that that hearsay exception does not apply here. Although we agree with Funtime that Fed. R.Evid. 803(8)(C) was not properly invoked under these facts, we find that its hearsay objections have no merit, and that the summaries were nevertheless admissible. “Commentators and other courts have agreed that Rule 1006 requires that the proponent of the summary establish that the underlying documents are admissible in evidence.” United States v. Johnson, 594 F.2d 1253, 1256 (9th Cir.) (emphasis added), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979); United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); United States v. Conlin, 551 F.2d 534, 538 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 (1977). “Thus, if the original materials contain hearsay and fail to qualify as admissible evidence under one of the exceptions to the hearsay rule” the summary based on that material is inadmissible. Johnson, 594 F.2d at 1256. Accord Scales, 594 F.2d at 562 (“If the [underlying] records themselves could have been admitted to show [their contents], there appears to be no reason why Rule 1006 would not apply to a summary of their contents.”). Therefore, the proper inquiry is whether Funtime’s personnel records fall within a hearsay exception and not whether there is some independent hearsay justification for admitting the summaries themselves. In this regard, it is certain the personnel" }, { "docid": "14567119", "title": "", "text": "this information, Barry created the summary evidence in the form of charts and graphs which were marked for identification by OCF but were not admitted into evidence. The Court, over objection by OCF, excluded the summary charts and graphs and severely limited Barry’s testimony. The summary evidence was excluded on two grounds: 1) the records may not have comprised the universe of Veteran documents, and 2) the basis of the exclusion of certain invoices from the summaries was unclear. The proffered summary did not deal with all 26,000 documents; nor with all of the 2000-3000 invoices that were said to have been contained therein. The subject summary was predicated on 1105 invoices that the witness concluded related to asbestos-containing products. Since this conclusion, and hence the summary itself, was based in part upon the “data base,” it contained information not present in and not taken solely from the underlying proof, see United States v. Scales, 594 F.2d 558, 561-63 (6th Cir.), cert. denied, 441 U.S. 946, 99 S.Ct. 2168, 60 L.Ed.2d 1049 (1979), and was thus inadmissible, see, e.g., Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 301 (3d Cir.1961). In short, it did not “fairly represent” the underlying documents, but summarized only those documents that, according to the witness, dealt with asbestos. See Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir.1985). The computerized list was not introduced nor was it made available in court or for review and inspection by counsel for Consorti. In the absence of the list and any testimony concerning its preparation, the summary based upon it became inadmissible. See United States v. King, 616 F.2d 1034, 1041 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980); Gordon v. United States, 438 F.2d 858, 876-77 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971). The Finding Of Concerted And Reckless Action By The Defendants Was Supported By The Evidence The defendants do not challenge the instructions to the jury with respect to concerted and reckless action on the part of" }, { "docid": "425718", "title": "", "text": "Best Evidence question, instead basing its admission solely on the Fed.R.Evid. 803(8)(C) exception. Joint Appendix at 39-40. We agree that the district court properly admitted the summaries, however, we find that its basis for admitting this evidence was improper. Instead, we believe that the admissibility of these documents hinges exclusively on Fed.R.Evid. 1006. Fed.R.Evid. 1006 provides: The contents of voluminous writings ... which cannot conveniently be examined in court may be presented in the form of a ... summary. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. Fed.R.Evid. 1006. This rule provides an exception to the “Best Evidence Rule” which ordinarily requires the proponent, when attempting to prove the content of a document or writing, to produce the original. Fed.R.Evid. 1002. As an initial matter, there is little doubt that Rule 1006 applies to the present facts as it was not disputed that Funtime’s original personnel records were voluminous. “The admission of summaries under Rule 1006 is committed to the sound discretion of the trial court.” United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 248 (1988). Under Rule 1006, the summary must be “accurate, authentic and properly introduced before it may be admitted into evidence.” United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946, 99 S.Ct. 2168, 60 L.Ed.2d 1049 (1979). Funtime contends that the district court erred because the summaries themselves were hearsay, and thus not admissible. The district court admitted the summaries under Fed.R.Evid. 803(8)(C), however Funtime argues that that hearsay exception does not apply here. Although we agree with Funtime that Fed. R.Evid. 803(8)(C) was not properly invoked under these facts, we find that its hearsay objections have no merit, and that the summaries were nevertheless admissible. “Commentators and other courts have agreed that Rule 1006 requires that the proponent of the summary establish that the underlying documents are admissible in evidence.” United States" }, { "docid": "1168940", "title": "", "text": "in evidence does not mean that they can be “conveniently examined in court.” United States v. Lemire, 720 F.2d 1327, 1347 (D.C. Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). Stephens’ reading of Rule 1006 is also clearly inconsistent with one proper method of laying a foundation for admission of summary charts — admitting the documentation on which the summary is based. 5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 1006[03], p. 1006-7 (1983). Stephens’ reliance on Pierce is misplaced. Pierce did not hold that charts based upon documents already in evidence are always pedagogical charts and ineligible under Rule 1006. The party in Pierce seeking to admit the charts into evidence did not offer the charts pursuant to Rule 1006, so Rule 1006 was not even an issue in the case. Stephens’ position runs counter to our decisions that do deal with Rule 1006 charts. In United States v. Means, 695 F.2d 811 (5th Cir.1983), we held that a chart based on documents in evidence was properly admitted under Rule 1006. To the same effect are United States v. Evans, 572 F.2d 455 (5th Cir.1978), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1979) and United States v. Smyth, 556 F.2d 1179 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977). Rule 1006 requires (1) the underlying writings be voluminous and (2) in-court examination not be convenient. Scales, 594 F.2d at 562. The decision of the trial judge to admit the charts is subject only to an abuse of discretion standard of review. United States v. Means, 695 F.2d 811, 817 (5th Cir.1983). There is no abuse of discretion in this case. The evidence was undisputably complex as it involved hundreds of exhibits. Stephens does not question that the underlying documentation was voluminous. Examination of the underlying materials would have been inconvenient without the charts utilized by the government. See United States v. Evans, 572 F.2d at 491; United States v. Howard, 774 F.2d 838, 844 (7th Cir.1985). We also find no merit to Stephens’" }, { "docid": "22255906", "title": "", "text": "pertinent part, that: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at [a] reasonable time and place. In applying Rule 1006, this Court has held that the Rule imposes five requirements for the admission of summary evidence: (1) the underlying documents are so voluminous that they cannot be conveniently examined in court; (2) the proponent of the summary must have made the documents available for examination or copying at a reasonable time and place; (3) the underlying documents must be admissible in evidence; (4) the summary must be accurate and nonprejudicial; and (5) the summary must be properly introduced through the testimony of a witness who supervised its preparation. United States v. Jamieson, 427 F.3d 394, 409 (6th Cir.2005). After considering the five requirements of Rule 1006, we find that the district court did not abuse its discretion in admitting the summary evidence. First, the documents underlying the summary charts satisfy the voluminousness requirement inasmuch as the charts were based on raw data provided by drug companies and health programs which were billed by Defendant. Second, Defendant does not dispute the fact that all documents utilized to create the summaries were submitted or otherwise made available to her. Third, the documents that provided the basis for the summary charts were admissible as business records under Rule 803(6). See Martin v. Funtime, Inc., 963 F.2d 110, 115 (6th Cir.1992) (concluding personnel records admissible under 803(6) made summaries of such rec ords admissible under Rule 1006). Fourth, Defendant has not alleged that the summaries were inaccurate or prejudicial. Fifth, the summaries were properly introduced through Special Agent Turner, who supervised their preparation. Thus, the summary evidence meets the standard for admissibility under Rule 1006. Therefore, the district court did not err in admitting into evidence the summary charts concerning drug transactions in Defendant’s office. CONCLUSION For the reasons stated above, we AFFIRM the judgment of the" }, { "docid": "23084740", "title": "", "text": "use. Wolverton testified that his analysis was based in part on “interview[s] of those people [who received a check] ... to confirm whether or not they were actually doing work on the art deco hotels.” Wolverton summarized his analysis of each diversion on schedules, which were used at trial to aid in his testimony. Over Pelullo’s objections, the district court admitted the schedules as summaries pursuant to Fed.R.Evid. 1006. Pelullo argues that the summaries should not have been admitted since they were based on inadmissible hearsay. We agree. Rule 1006 provides: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. It is well established that summary evidence is admissible under Rule 1006 only if the underlying materials upon which the summary is based are admissible. AM-PAT/Midwest, Inc. v. Ill. Tool Works, Inc., 896 F.2d 1035, 1045 (7th Cir.1990); United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir.1988); State Office Systems, Inc. v. Olivetti Corp. of Am., 762 F.2d 843, 845 (10th Cir.1985); Hackett v. Housing Auth. of San Antonio, 750 F.2d 1308, 1312 (5th Cir.), cert. denied, 474 U.S. 850, 106 S.Ct. 146, 88 L.Ed.2d 121 (1985); Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir.1984); United States v. Johnson, 594 F.2d 1253, 1255-57 (9th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979); see also 5 Weinstein & Berger ¶ 1006[03], at 1006-7. Inasmuch as we have found that the bank documents were inadmissible, it follows that the schedules must fail as well. Moreover, the summaries were inadmissible because they were based in part on Wolverton’s out-of-court interviews. The Government argues that this cannot be so: “[Pelullo’s] argument proposes an absurd rule of evidence. If correct, law enforcement officers investigating financial crimes would be competent to testify only if they participated in" }, { "docid": "10513822", "title": "", "text": "could find White liable if it found either that White knew or should have known that dienestrol could cause cancer in female offspring of the pregnant user or if it found that dienestrol was ineffective in preventing miscarriages. The jury did not return a special verdict, so we cannot discern if it held White liable solely because it found that dienestrol was ineffective. Section 402A does not impose strict liability based on the theory that an ineffective product is a defective product unreasonably dangerous. Therefore, we must reverse the jury verdict and remand for a new trial. IV White claims that the trial court erred in permitting Needham’s witness, Dr. Michael B. Shimkin, to read into evidence a list of medical article titles. Dr. Shimkin testified on direct examination that the titles were of articles published before 1952 that discussed the possibility of a relationship between estrogen and cancer. Tr. at 183. On cross-examination he testified that he had not read all of the articles. The trial court accepted the list into evidence, over White’s objection, for the limited purpose of showing that White should have known in 1952 that dienestrol could cause cancer. Tr. at 269. A trial judge may admit a summary of voluminous writings into evidence. Fed.R.Evid. 1006. Admission of summaries is a matter that rests within the sound discretion of the judge. Baines v. United States, 426 F.2d 833, 840 (5th Cir. 1970). See also Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 300 (3d Cir. 1961). Before a summary is admitted, the proponent must lay a proper foundation as to the admissibility of the material that is summarized and show that the summary is accurate. Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d at 301. Needham failed to satisfy either of these requirements. First, Needham failed to lay a proper foundation as to the admissibility of the articles. The article titles were admitted for the limited purpose of showing that White should have known that dienestrol caused cancer because numerous articles published before 1952 tended to show a relationship between estrogen and" }, { "docid": "7296390", "title": "", "text": "acts in Montana, venue was proper in that district. II. Admission of Exhibit 15 Meyers also argues the district court erred in admitting under Fed.R.Evid. 1006, exhibit 15, a chart summarizing the phone calls and events observed by surveillance teams on December 12, 1986. This Court reviews a district court’s evi-dentiary rulings for an abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987). Even if error is found, nonconstitutional errors do not require reversal unless it is “more probable than not” that they affected the verdict. United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir.1984); Fed.R. Crim.P. 52(a). The proponent of a summary of “voluminous writings” under Fed.R.Evid. 1006 must, in this Circuit, establish that the underlying materials upon which the summary is based are admissible in evidence. United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979); City of Phoenix v. Com/Systems, Inc., 706 F.2d 1033, 1038 (9th Cir.1983) (summary admissible only if underlying documents admissible, voluminous and available for inspection). Although the underlying materials must be “admissible,” they need not be “admitted” in every case. Johnson, 594 F.2d at 1257, n. 6. Exhibit 15 summarized (1) a record of long distance phone calls of various co-conspirators and (2) the surveillance logs of two FBI teams. At the time exhibit 15 was offered, the telephone logs had been admitted and FBI Special Agent Reid Robertson, head of the surveillance team of December 12, 1986 had fully testified. Later in the trial, Special Agent Gunnar Askeland, also a member of the surveillance team, testified and was cross-examined as to the contents of the chart and the matters observed on the day in question. The surveillance logs themselves had also been made available for inspection by the defense but were never formally admitted into evidence. The surveillance reports, though not admitted, were admissible under the business record exception to the hearsay rule. Fed. R.Evid. 803(6). It is established that “entries in a" }, { "docid": "2637791", "title": "", "text": "in which Robinson, Wilson, and Milliken all join, concerns the admission of Government Exhibits Nos. 21 and 22. Exhibit 21 is a thirteen-page summary worksheet prepared by FBI Agent Don Oxler, listing 105 clients who applied for loans from appellants. The worksheet lists by column the following data for each loan applicant: the date of his contract; the agreed upon fees to be paid Milliken, Wilson, Robinson, or T-Plex; the borrower’s gross proceeds (should the loan go through); the date of the collateral instrument letter; and the gross loan amount, the amount which the foreign source actually would have to lend for the individual borrower to receive the “commission” he was seeking. Exhibit 22 consists of three large charts, which contain exactly the same information as in Exhibit 21. Appellants contend that the admission of these exhibits, which came in under Fed.R. Evid. 1006, over their objections was reversible error, because no proper foundation existed for the admission of the underlying documents on which the exhibits were based; the summaries were incomplete and were introduced before all the supporting evidence for them was put into evidence; the underlying documents were not voluminous; and the summaries included all 105 loan applicants instead of just the fifteen named in the indictment. Fed.R.Evid. 1006 states as follows: The contents of voluminous writings * * which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. The district court has considerable discretion in determining whether to send exhibits to the jury. See, e.g., United States v. Lewis, 759 F.2d 1316, 1329 n. 6 (8th Cir.1985); United States v. Wilson, 665 F.2d 825, 829-30 (8th Cir.1981), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); United States v. John Bernard Industries, 589 F.2d 1353, 1359-60 (8th Cir.1979). We will not reverse the district court’s determination on appeal unless it has abused its" }, { "docid": "10309229", "title": "", "text": "be adduced and admitted at trial. Conoco, Inc. v. Department of Energy, 99 F.3d 387, 393-95 (Fed.Cir.1996) (vacating a grant of summary judgment based on inadmissible evidence). “Since the burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of material fact, the movant also must show that the content of his affidavits would be admissible at trial.” 10B Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2738 at 342 (1998). The admissibility of a summary of evidence in federal courts is governed by Fed.R.Evid. 1006. For a summary to be admissible under Rule 1006, the proponent must lay a proper foundation by establishing four requirements: First, the summarized writings must be so voluminous so as to be unable to be conveniently examined in court. Second, the underlying evidence must itself be admissible. Third, the original or copies of the summarized writings must be made available to the opposing party. And, fourth, the proposed summary (or chart or calculation) must accurately summarize (or reflect) the underlying document(s) and only the underlying document(s). Bath Iron Works Corp. v. United States, 34 Fed.Cl. 218, 232-33 (1995) (emphasis and internal citations omitted), aff'd, 98 F.3d 1357 (Fed.Cir.1996). Bannum failed to fulfill these requirements. Most importantly, because Bannum had not satisfied its obligation to make the documents underlying its summaries available to the government for review, there was no way for the government to verify whether the summaries accurately reflected the documentary evidence. Moreover, in supporting its cross-motion for summary judgment by presenting the summaries, Bannum did not address the other requirements of Rule 1006 — including the volume of the underlying documents, whether those documents themselves would be admissible, or whether prejudicial or unverifiable information was added to the summaries. In short, the proponent of a summary must properly authenticate it, see Bristol Steel & Iron Works, Inc., 41 F.3d at 189-90, and this Bannum had failed to do. Nothing Bannum has presented in support of its motion for reconsideration suggests otherwise. Rule 1006 is aimed at “provid[ing] a practicable means of summarizing" }, { "docid": "12676178", "title": "", "text": "law. See United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1116 (10th Cir.1998). At trial, FBI agent Mark Seyler testified at length about his investigation of the drug-trafficking ring in which Samaniego was implicated. A significant part of Agent Seyler’s testimony focused upon summaries he made of subpoenaed telephone records. None of the underlying telephone records were admitted into evidence. The summaries, however, were received as government exhibits 900 through 906 over the objections of defense counsel. Defense counsel objected to their use for several reasons, including the inadmissibility of the underlying documents as hearsay. Rule 1006 states ■ that summaries are permissible when voluminous evidence “cannot conveniently be examined in court,” and when the evidence upon which the summary is based is made available to the other parties at a “reasonable time and place.” Fed.R.Evid. 1006. The materials upon which the summary is based need not themselves be admitted into evidence. See 6 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 1006.02 (Joseph M. McLaughlin, ed., 1999) [hereinafter Weinstein’s Federal Evidence]. Admission of summaries, however, is conditioned on the requirement that the evidence upon which they are based, if not admitted, must be admissible. See, e.g., Harris, 948 F.2d at 1525 (holding that Rule 1006 “clearly permits the use of a summary of business records provided ‘all of the records from which it is drawn are otherwise admissible’ ” (quoting State Office Sys., Inc. v. Olivetti Corp. of Am., 762 F.2d 843, 845 (10th Cir.1985))); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir.1992); Weinstein’s Federal Evidence, § 1006.06[3]. A contrary result would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay. See United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.1979) (“We do not believe that Congress intended that counsel could abrogate other restrictions on the admissibility— like the hearsay rule — by the use of summaries .... ”). The telephone records from which the summaries were drawn are indubitably hearsay. The obligation of establishing the applicability of a hearsay exception for these" } ]

[ { "docid": "8071656", "title": "", "text": "responded by asserting in his petition: “The Commissioner erred in his determination that the Alimony payments totaling 587.23 during the taxable year ended December 31, 1975 were not deductible under Sec. 215 of the Code.” On August 13, 1979, respondent filed his answer, wherein and pursuant to Rule 39, he affirmatively raised the doctrine of collateral estoppel (estoppel by judgment) in paragraph 6 and with respect thereto stated: (a) The petitioner in this case is the same petitioner whose case was decided in Sydnes v. Commissioner, 68 T.C. 170 (1977),[ ] aff’d in part and rev’d in part, 577 F.2d 60 (8th Cir. 1978). (b) In the statement attached to the statutory notice of deficiency issued to the petitioner it is stated that the claimed deductions were disallowed because lump-sum cash or property settlements are not deductible as alimony. (c) In the above-cited case, the Tax Court held after a trial on the merits, that petitioner’s payments on a mortgage were part of a property settlement and not alimony, and that petitioner was not entitled to deduct the mortgage payments under I.R.C. sec. 215. This holding of the Tax Court was affirmed by the Eighth Circuit Court of Appeals. (d) The payments, which are disallowed as a deduction by the statutory notice in this case, are mortgage payments on the same mortgage, which prior payments were in issue before the Court in the above-named proceeding. (e) The deficiency in dispute in this case arises from a determination which is identical in all respects to that decided in the above-named proceeding and the controlling facts and applicable legal principles remain unchanged. Thereafter, the Court allowed petitioner to file his reply out of time. Therein, respecting the doctrine of collateral estoppel, he alleged in paragraph 6: a. The Court relied on statements in the Respondent’s Briefs which are untrue in Sydnes v. Commissioner, 68 T.C. 170 (1977). b. The Respondent has steadfastly refused to correct the untrue statements made to the Court. Later, respondent filed his motion for summary judgment, which is herein under consideration. Therein, we are advised at paragraphs 8" } ]

[ { "docid": "8071654", "title": "", "text": "County, Iowa, District Court. On July 9, 1971, a decree of dissolution of marriage was entered and filed. Prior to the entry of the decree, petitioner and Lugene, through their attorneys, had attempted to resolve questions of alimony and property settlement. Petitioner was adament in his opposition to granting his wife alimony in any amount. As a result of the negotiations between the parties, an agreement was reached which was reflected in the District Court’s decree. The decree provided that substantial property be transferred to Lugene, including a rental property upon which the principal sum of $8,473.62 remained due on a mortgage, which petitioner agreed to assume and pay, on an installment basis, in accordance with the mortgage provisions. The decree, in this respect, provided: That the Petitioner [Lugene] is hereby granted the property of the parties locally known as 3403 50th Street, Des Moines, Iowa, * * * and the Respondent, Richard J. Sydnes, shall pay and satisfy the existing mortgage thereon with United Federal Savings and Loan Association in the approximate sum of $8,700.00 and shall save the Petitioner harmless from the payment of the same, and the Court hereby retains jurisdiction for the purpose of enforcing the payment by the Respondent of said mortgage. Title is hereby quieted in the Petitioner, R. Lugene Sydnes, as against any claims of the Respondent or anyone claiming through, by or under him. The decree further provided: “That the Petitioner [Lugene] shall have no alimony nor is she entitled to any alimony.” On his 1975 income tax return, petitioner reported that he had received wages of $19,447.69 during 1975 from his employment as an accountant for the State of Iowa and a net profit of $2,635.33 for services rendered as a clergyman. He also deducted as alimony the mortgage payments, totaling $587.23, made by him during 1975 on the rental property granted to Lugene under the July 9, 1971, decree. Respondent, in his notice of deficiency issued to petitioner on April 11, 1979, disallowed the claimed alimony deduction on the ground that the payments were part of a property settlement. Petitioner" }, { "docid": "890497", "title": "", "text": "that the same was earned in obtaining support and maintenance. Mr. Marks testified that this was a stock provision placed in decrees at that time. The record as a whole supports the Tax Court’s conclusion that the mortgage payments were made as a part of the property settlement and not as alimony. Accordingly, such payments are not deductible by the taxpayer. We affirm on this issue upon the basis of the Tax Court’s published opinion. This case is remanded to the Tax Court for further proceedings not inconsistent with the views expressed in this opinion and for computation of the tax liability for the year 1971. Each party shall be assessed one-half the costs in this court. . This case was consolidated for trial with that of R. Lugene Sydnes, No. 7548-74S, but not for briefing or opinion. The decision in such case is not in the record and no appeal in that case is before us. The decision below is reported at 68 T.C. 170 (1977). . The taxpayer at oral argument presented the court with a statement of his assets at the time of the divorce but such statement cannot be considered as it was not before the trial court. In any event, it likely has no relevancy on the merits of this case as the property settlement was negotiated." }, { "docid": "8071670", "title": "", "text": "issue twice heretofore petitioned to this Court by petitioner and twice decided adversely to his position. Some of the facts recited in this opinion have been found, by virtue of judicial notice, from our earlier opinion respecting this issue. See Sydnes v. Commissioner, 68 T.C. 170 (1977), affd. on this issue 577 F.2d 60 (8th Cir. 1978). The controlling facts and applicable legal principles remain unchanged. See rules 201(c), (d), (e), and (f), Fed. R. Evid. The Tax Court may judicially notice its findings of fact and opinion in a prior case but need not do so. See 2 L. Casey, Federal Tax Practice, sec. 8.22 (1955 & Cum. Supp. 1979). Here, petitioner was put on notice by respondent in the latter’s answer and motion for summary judgment that prior judicially determined facts respecting the same issue were being relied upon through the doctrine of collateral estoppel (estoppel by judgment). Petitioner responded to those documents in his reply and response to respondent’s motion. All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated. There we found as a fact that petitioner was adamant in his opposition to granting his wife alimony in any amount. 68 T.C. at 172. Moreover, in n. 2 at 172, we stated further: “Petitioner had stated to Lugene’s attorney that under no circumstances would he pay or agree to pay any support, maintenance, or alimony. He also had stated to Lugene that he would leave the country before he would pay her one cent of alimony.” Here, petitioner has omitted nothing. The same facts, arguments, and controlling legal principles have remained unchanged since the inception of his first suit on Aug. 27, 1974. Sec. 6673 provides— Whenever it appears to the Tax Court that proceedings before it have been instituted by the taxpayer merely for delay, damages in an amount not in excess of $500 shall be awarded to the United States by the Tax Court in its decision. Damages so awarded shall be assessed at the same time as the deficiency and shall be paid upon notice and demand" }, { "docid": "890491", "title": "", "text": "a single taxpayer. He deducted from his income $1229.90 as temporary support money paid as ordered by the state court and $545.30 as payment on a rental property mortgage as ordered by the final dissolution decree. Taxpayer and his wife, R. Lugene Sydnes, were married on June 15, 1946. They had two daughters, both of whom had married and left the home. Lugene on February 17, 1971, filed a petition for dissolution of marriage in the Polk County, Iowa, district court. She asked for temporary and permanent alimony and the award of specified property owned by the parties. On March 18 Lugene filed an application for temporary support. On April 1 an order was entered requiring petitioner to pay the usual family bills and to allow Lugene to write checks on a joint account not to exceed $30.00 per check. The $1229.90 deduction is based on disbursements made by taxpayer pursuant to such order. On July 9, 1971, a decree of dissolution of marriage was entered and filed which provided that substantial property be transferred to the wife, including a duplex upon which the principal payment remained due on a mortgage in the amount of $8,473.62, which the taxpayer agreed to assume and pay on an installment basis in accordance with the mortgage provisions. Lugene was awarded the home, most of the personal property and an automobile. The total assets of the parties at the time of the decree is not set out in the record since the parties through negotiations had agreed upon the settlement. It would appear that the property settlement was liberal for the purpose of inducing a denial of alimony. Twenty-six U.S.C. § 71(a)(3) provides: (3) Decree for Support. — If a wife is separated from her husband, the wife’s gross income includes periodic payments (whether or not made at regular intervals) received by her after the date of the enactment of this title from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. Treasury Regulations on income tax, 1954 Code, 26 C.F.R." }, { "docid": "8071655", "title": "", "text": "$8,700.00 and shall save the Petitioner harmless from the payment of the same, and the Court hereby retains jurisdiction for the purpose of enforcing the payment by the Respondent of said mortgage. Title is hereby quieted in the Petitioner, R. Lugene Sydnes, as against any claims of the Respondent or anyone claiming through, by or under him. The decree further provided: “That the Petitioner [Lugene] shall have no alimony nor is she entitled to any alimony.” On his 1975 income tax return, petitioner reported that he had received wages of $19,447.69 during 1975 from his employment as an accountant for the State of Iowa and a net profit of $2,635.33 for services rendered as a clergyman. He also deducted as alimony the mortgage payments, totaling $587.23, made by him during 1975 on the rental property granted to Lugene under the July 9, 1971, decree. Respondent, in his notice of deficiency issued to petitioner on April 11, 1979, disallowed the claimed alimony deduction on the ground that the payments were part of a property settlement. Petitioner responded by asserting in his petition: “The Commissioner erred in his determination that the Alimony payments totaling 587.23 during the taxable year ended December 31, 1975 were not deductible under Sec. 215 of the Code.” On August 13, 1979, respondent filed his answer, wherein and pursuant to Rule 39, he affirmatively raised the doctrine of collateral estoppel (estoppel by judgment) in paragraph 6 and with respect thereto stated: (a) The petitioner in this case is the same petitioner whose case was decided in Sydnes v. Commissioner, 68 T.C. 170 (1977),[ ] aff’d in part and rev’d in part, 577 F.2d 60 (8th Cir. 1978). (b) In the statement attached to the statutory notice of deficiency issued to the petitioner it is stated that the claimed deductions were disallowed because lump-sum cash or property settlements are not deductible as alimony. (c) In the above-cited case, the Tax Court held after a trial on the merits, that petitioner’s payments on a mortgage were part of a property settlement and not alimony, and that petitioner was not entitled" }, { "docid": "17281935", "title": "", "text": "part due to the willingness of our citizens to honestly and fairly participate in our tax collection system which depends upon self-assessment. Any citizen may resort to the courts whenever he or she in good faith and with a colorable claim desires to challenge the Commissioner’s determination; but that does not mean that a citizen may resort to the courts merely to vent his or her anger and attempt symbolically to throw a wrench at the system. Access to the courts depends upon a real and actual wrong — not an imagined wrong— which is susceptible of judicial resolution. General grievances against the policies of the Government, or against the tax system as a whole, are not the types of controversies to be resolved in the courts; Congress is the appropriate body to which such matters should be reférred.[ ] While we did not award damages in Hatfield v. Commissioner, supra, we issued this warning — \"but if tax protesters continue to bring such frivolous cases, serious consideration should be given to imposing such damages [under section 6673].” Hatfield v. Commissioner, supra at 900.. Similar warnings were promulgated in Crowder v. Commissioner, T.C. Memo. 1978-273, and Clippinger v. Commissioner, T.C. Memo. 1978-107. Tax protest petitions continued to be filed with this Court with increased frequency and, finally, upon motion of respondent, we began awarding damages to the United States in appropriate cases. See Wilkinson v. Commissioner, 71 T.C. 633 (1979), which was reviewed by the Court; Greenberg v. Commissioner, 73 T.C. 806 (1980). Shortly after Greenberg was issued we, for the first time, awarded damages in a proper circumstance on our own motion. Sydnes v. Commissioner, 74 T.C. 864, 870-873 (1980), affd. 647 F.2d 813 (8th Cir. 1981). Despite these opinions, petitions filed merely for delay continued to overburden this Court’s docket. Taking cognizance of this fact, on June 15, 1981, we aptly and cogently stated— It may be appropriate to note further that this Court has been flooded with a large number of so-called tax protester cases in which thoroughly meritless issues have been raised in, at best, misguided" }, { "docid": "19055827", "title": "", "text": "in future cases, 68 T.C. at 900, and reiterated that warning in Crowder v. Commissioner, 37 T.C.M. (CCH) 1173, 1173-3 (1978). Nonetheless, the number of tax protest petitions continued to increase. In 1979, the court for the first time, upon a motion by the Commissioner, awarded section 6673 damages. ‘ Wilkinson v. Commissioner, 71 T.C. 633 (1979). The following year the court awarded section 6673 damages for the first time, sua sponte, Sydnes v. Commissioner, 74 T.C. 864 (1980), and this court sustained that award on appeal. Sydnes v. Commissioner, 647 F.2d 813 (8th Cir.1981). Despite the warnings and the imposition of section 6673 damages, the number of tax protest petitions continued to increase, see Grimes v. Commissioner, 82 T.C. 235, 238 (1984), and the Tax Court issued further warnings that it would begin to dispose of these cases summarily. McCoy v. Commissioner, 76 T.C. 1027, 1029-30 (1981), aff'd, 696 F.2d 1234 (9th Cir.1983). In an attempt to stem the huge increase in the Tax Court’s docket attributable to tax protest suits, Congress amended section 6673 in 1982, increasing the permissible penalty from $500 to $5,000 and expanding the court’s authority to assess damages under that section to cases in which the taxpayer’s suit is frivolous or groundless. See H.R.Rep. No. 404, 97th Cong., 1st Sess. 11, 15 (1981). Accordingly, there is no doubt that the Tax Court may assess section 6673 damages against petitioners who abuse the system by filing frivolous petitions or who file petitions to delay payment of their taxes. The discretion given the court to impose damages under section 6673, however, is not an unbridled discretion; it is subject to appellate review to ensure that it is not abused. The courts of appeals have an obligation to ensure that the Tax Court’s discretion does not become a talismanic formula that effectively precludes appellate review in apparent tax protest cases. Thus, the Tax Court should indicate the facts upon which it relied in assessing section 6673 damages to facilitate review on appeal as to whether its exercise of discretion was appropriate. It is, perhaps, understandable — in" }, { "docid": "8071669", "title": "", "text": "references herein are to the Tax Court Rules of Practice and Procedure, unless otherwise stated. Since this is a pretrial motion for summary judgment, and there is no genuine issue of material fact, the Court has concluded that the posttrial procedures of Rule 182, Tax Court Rules of Practice and Procedure, are not applicable in these particular circumstances. This conclusion is based on the authority of the “otherwise provided” language of that Rule. The parties were afforded a full opportunity to present their views on the law at the hearing on June 4, 1980. That case, which involved petitioner’s taxable year 1971, was consolidated for trial only with that of R. Lugene Sydnes (Lugene), docket No. 7548-74S, which involved Lugene’s 1971 taxable year. In that case, which involved petitioner’s taxable years 1973 and 1974, respondent’s motion for summary judgment based upon the doctrine of collateral estoppel (estoppel by judgment) was granted after hearing thereon, the parties being present, and decision was entered on Nov. 7, 1979. The issue before us now is identical to an issue twice heretofore petitioned to this Court by petitioner and twice decided adversely to his position. Some of the facts recited in this opinion have been found, by virtue of judicial notice, from our earlier opinion respecting this issue. See Sydnes v. Commissioner, 68 T.C. 170 (1977), affd. on this issue 577 F.2d 60 (8th Cir. 1978). The controlling facts and applicable legal principles remain unchanged. See rules 201(c), (d), (e), and (f), Fed. R. Evid. The Tax Court may judicially notice its findings of fact and opinion in a prior case but need not do so. See 2 L. Casey, Federal Tax Practice, sec. 8.22 (1955 & Cum. Supp. 1979). Here, petitioner was put on notice by respondent in the latter’s answer and motion for summary judgment that prior judicially determined facts respecting the same issue were being relied upon through the doctrine of collateral estoppel (estoppel by judgment). Petitioner responded to those documents in his reply and response to respondent’s motion. All section references are to the Internal Revenue Code of 1954, as" }, { "docid": "20723119", "title": "", "text": "reflected in the District Court’s decree. Under the terms of the decree, Lugene was granted title to the family residence and the rental property located in Des Moines. She was to assume and pay the existing mortgage on the family residence, while petitioner was to assume and pay the existing mortgage on the rental property. The latter mortgage had a principal balance of $8,473.62 on the date this decree was entered, and was scheduled to be paid in 150 monthly payments of $76.84 and one payment of $67.46. Lugene also was granted title to most of the household goods and furnishings, and one of the family automobiles. Petitioner was granted title to the other family automobile and certain items of personal property. The decree did not dispose of petitioner and Lugene’s life insurance or their joint bank account. In addition the decree provided: It Is FuRther Ordered, Adjudged and Decreed That [R. Lugene Sydnes] shall have no alimony nor is she entitled to any alimony. On his 1971 income tax return petitioner reported gross income of $16,777.56. He deducted $1,229.90 as temporary support for Lugene for April through July 1971. Petitioner also deducted as alimony the mortgage payments, totaling $545.30, made by him for the period July 9 through December 31, 1971, on the rental property granted to Lugene under the July 9, 1971, decree. Respondent disallowed both deductions in their entirety. OPINION The first issue for decision is whether certain temporary support payments made by petitioner under a court order were made while he was \"separated” from his wife. If the payments were made while petitioner and his wife were \"separated,” as petitioner claims, then the amounts are includable in her gross income under section 71(a)(3), and petitioner is entitled to a deduction for those amounts under section 215(a). However, if petitioner and his wife were not \"separated” when the payments were made, as respondent claims, then the amounts are not includable in her gross income and petitioner is not entitled to a deduction. In February 1971, R. Lugene Sydnes filed a petition in District Court, Polk County, Iowa," }, { "docid": "9904561", "title": "", "text": "standard, we upheld (1) the Tax Court’s determination that it was “ ‘highly unlikely an unrelated lessee in petitioners’ position would have paid $24,870 per year for the use of the land while also carrying responsibility for taxes, mortgage payments, and gardening expenses,’ ” and (2) the Tax Court’s finding that the appropriate rent deductible under the lease for the three years at issue was the amount stated in the lease reduced by the gardening expenses and 25% of the property taxes and mortgage payments. Peck I, 752 F.2d at 472-73. In deciding whether collateral estoppel applies under Sunnen, we must determine whether this proceeding involves “the same set of events or documents and the same bundle of legal principles that contributed to the rendering of the first judgment.” 333 U.S. at 602, 68 S.Ct. at 721. We focus on whether the legal relationship changed over the relevant time period. See Southwest Exploration Co. v. Riddell, 362 F.2d 833, 837 (9th Cir.1966) (applying collateral estoppel in the computation of depletion deductions when the legal relationship between the parties had not changed from the time period which was the subject of the prior action); Jones v. United States, 466 F.2d 131, 135-36 (10th Cir.1972) (applying collateral estoppel in determining the character of payments received under a contract which contained terms which did not change over the relevant time period), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 257 (1973); Sydnes v. Commissioner, 647 F.2d 813, 815 (8th Cir.1981) (applying collateral estoppel in determining the character of payments under the same mortgage considered in a prior action). The legal relationship in this case is a lease. The test for determining whether rent payments are reasonable is “whether the sum paid is in excess of what the lessee would have been required to pay had he dealt at arm’s length with a stranger.” Mackinac Island Carriage Tours, Inc. v. Commissioner, 455 F.2d 98, 100 (6th Cir.1972) (applying 26 U.S.C. § 162, which allows deductions from gross income for ordinary and necessary business expenses). In the context of a long-term lease, the" }, { "docid": "890490", "title": "", "text": "VAN OOSTERHOUT, Senior Circuit Judge. This is a timely appeal by taxpayer, Richard J. Sydnes, from final decision of the Tax Court determining deficiency in income tax due from the taxpayer for the year 1971 in the amount of $406.20. Jurisdiction in this court exists under 26 U.S.C. § 7482. The issues presented by this appeal are: I. Whether the Tax Court correctly found taxpayer and his wife were not separated within the meaning of 26 U.S.C. § 71(a)(3) and thus taxpayer was not entitled to deduct from his gross income support payments made pursuant to a separate maintenance order in an Iowa divorce proceeding. II. Whether the Tax Court correctly determined that mortgage payments made in 1971 by taxpayer pursuant to the' final dissolution of marriage decree were part of a property settlement and thus not deductible as alimony. We reverse the Tax Court on Issue I and affirm on Issue II for the reasons hereinafter set forth. , I. Petitioner, a resident of Des Moines, Iowa, filed a 1971 income tax return as a single taxpayer. He deducted from his income $1229.90 as temporary support money paid as ordered by the state court and $545.30 as payment on a rental property mortgage as ordered by the final dissolution decree. Taxpayer and his wife, R. Lugene Sydnes, were married on June 15, 1946. They had two daughters, both of whom had married and left the home. Lugene on February 17, 1971, filed a petition for dissolution of marriage in the Polk County, Iowa, district court. She asked for temporary and permanent alimony and the award of specified property owned by the parties. On March 18 Lugene filed an application for temporary support. On April 1 an order was entered requiring petitioner to pay the usual family bills and to allow Lugene to write checks on a joint account not to exceed $30.00 per check. The $1229.90 deduction is based on disbursements made by taxpayer pursuant to such order. On July 9, 1971, a decree of dissolution of marriage was entered and filed which provided that substantial property be transferred" }, { "docid": "20723116", "title": "", "text": "Hall, Judge: Respondent determined a $413.93 deficiency in petitioner’s income tax for 1971. Other issues having been disposed of by agreement of the parties, the two issues remaining for decision are: (1) Whether certain temporary support payments made by petitioner to his wife under a court order were made while the parties were \"separated.” (2) Whether mortgage payments made by petitioner on property awarded to his former wife under a divorce decree were support payments or part of the property settlement. FINDINGS OF FACT Some of the facts have been stipulated and are found accordingly. Petitioner resided in Des Moines, Iowa, at the time he filed his petition. He filed an individual income tax return for 1971 as a single taxpayer. Petitioner and R. Lugene Sydnes (Lugene) were married on June 15, 1946. On February 17, 1971, Lugene filed a petition for dissolution of marriage in the District Court, Polk County, Iowa. This petition set forth the property owned by petitioner and Lugene, including the family residence in Des Moines, certain household goods and furnishings, two automobiles, rental property in Des Moines, and certain life insurance policies. In this petition Lugene requested that she be granted temporary and permanent alimony, the family residence, the household goods and furnishings, and one of the automobiles. In addition, she requested the District Court to determine a fair and equitable division of the other property owned by her and petitioner. Subsequently on March 8, 1971, Lugene filed an application for temporary support, fees and costs in which she requested temporary alimony of $100 per week. Thereafter, on April 1, 1971, the District Court entered a ruling on the application requiring petitioner to continue paying the usual family bills, including the home mortgage, taxes, groceries, etc., and allowing Lugene to use the joint bank account to write checks (not in excess of $30 per check). The ruling also provided: That an order for conciliator will be entered herein and during the time these proceedings are being conducted the parties will continue to live separately but in the same home. During the period from April 1" }, { "docid": "8071653", "title": "", "text": "OPINION Dawson, Judge: This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent’s motion for summary judgment filed herein on April 18, 1980, pursuant to Rule 121, Tax Court Rules of Practice and Procedure. After a review of the record, we agree with and adopt his opinion which is set forth below. OPINION OF THE SPECIAL TRIAL JUDGE Cantrel, Special Trial Judge: Respondent determined a $166.88 deficiency in petitioner’s Federal income tax for 1975. The only issue for decision is whether mortgage payments made by petitioner on property awarded to his former wife under a divorce decree were support payments or part of a property settlement. Petitioner resided in Des Moines, Iowa, on July 10, 1979, the date he filed his petition. He filed an individual Federal income tax return for 1975 as a single taxpayer. Petitioner and R. Lugene Sydnes (Lugene) were married on June 15, 1946. Lugene, on February 17, 1971, filed a petition for dissolution of marriage in the Polk County, Iowa, District Court. On July 9, 1971, a decree of dissolution of marriage was entered and filed. Prior to the entry of the decree, petitioner and Lugene, through their attorneys, had attempted to resolve questions of alimony and property settlement. Petitioner was adament in his opposition to granting his wife alimony in any amount. As a result of the negotiations between the parties, an agreement was reached which was reflected in the District Court’s decree. The decree provided that substantial property be transferred to Lugene, including a rental property upon which the principal sum of $8,473.62 remained due on a mortgage, which petitioner agreed to assume and pay, on an installment basis, in accordance with the mortgage provisions. The decree, in this respect, provided: That the Petitioner [Lugene] is hereby granted the property of the parties locally known as 3403 50th Street, Des Moines, Iowa, * * * and the Respondent, Richard J. Sydnes, shall pay and satisfy the existing mortgage thereon with United Federal Savings and Loan Association in the approximate sum of" }, { "docid": "890496", "title": "", "text": "amount of $1229.90 from his 1971 income pursuant to 26 U.S.C. § 71(a)(3). II. We agree with the Tax Court’s determination that the mortgage payments made on the duplex awarded the wife in the divorce decree were made pursuant to an agreed upon property settlement made by the parties after extensive negotiations and approved by the court. Mr. Marks, Lu-gene’s attorney in the divorce proceedings, specifically testified that he had frequent talks with the taxpayer and his attorney with respect to a property settlement and alimony and that taxpayer and his counsel at all times insisted defendant would not agree to pay alimony and that by mutual agreement the decree was entered containing a specific provision reading: It is further ORDERED, ADJUDGED AND DECREED That the petitioner shall have no alimony nor is she entitled to any alimony. Defendant makes some contention that the decree is ambiguous as to alimony as a paragraph of the decree relating to attorney’s fees states that the attorney fee judgment shall not be dischargeable in bankruptcy for the reason that the same was earned in obtaining support and maintenance. Mr. Marks testified that this was a stock provision placed in decrees at that time. The record as a whole supports the Tax Court’s conclusion that the mortgage payments were made as a part of the property settlement and not as alimony. Accordingly, such payments are not deductible by the taxpayer. We affirm on this issue upon the basis of the Tax Court’s published opinion. This case is remanded to the Tax Court for further proceedings not inconsistent with the views expressed in this opinion and for computation of the tax liability for the year 1971. Each party shall be assessed one-half the costs in this court. . This case was consolidated for trial with that of R. Lugene Sydnes, No. 7548-74S, but not for briefing or opinion. The decision in such case is not in the record and no appeal in that case is before us. The decision below is reported at 68 T.C. 170 (1977). . The taxpayer at oral argument presented the" }, { "docid": "21728521", "title": "", "text": "730, 734 (1978), aff'd, 614 F.2d 159 (8th Cir.1980); Hayward v. Day, 619 F.2d 716, 717 (8th Cir.1980), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980). Cf. Broughton v. United States, 632 F.2d 706 (8th Cir.1980), cert. denied, 450 U.S. 930, 101 S.Ct. 1390, 67 L.Ed.2d 363 (1981); Funk v. Commissioner, 687 F.2d 264, 265 (8th Cir.1982); Lively v. Commissioner, 705 F.2d 1017 (8th Cir.1983); United States v. Buras, 633 F.2d 1356, 1361 (9th Cir. 1980); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). The Tax Court also correctly sustained the $501.20 addition to tax. Section 6653(a) of the Code provides for the imposition of an addition to tax where underpayment of taxes is caused, in whole or in part, by “negligence or intentional disregard of rules or regulations.” We agree with the Tax Court that taxpayers here acted in disregard — indeed, defiance — of the tax laws when they excluded their wages from taxable income. Last, the Tax Court properly assessed $1,000 in damages pursuant to 26 U.S.C. § 6673. That section permits the Tax Court to assess damages of up to $5,000 against taxpayers who file frivolous or groundless proceedings. Taxpayers here had no reasonable basis to believe that wages were not properly subject to income taxes given the universal and longstanding rejection of this argument. Moreover, they had ample warning that a frivolous petition such as theirs would likely result in the exercise of the Tax Court’s statutory authority to assess damages. See Hatfield v. Commissioner, 68 T.C. 895, 899 (1977); Crowder v. Commissioner, 47 T.C.M. (PH) ¶78,273 (1978); Clippinger v. Commissioner, 47 T.C.M. (P-H) ¶ 78,107 (1978); Sydnes v. Commissioner, 74 T.C. 864, 870-73 (1980), affd, 647 F.2d 813 (8th Cir.1981); Abrams v. Commissioner, 82 T.C. No. 29 (1984). Accordingly, the decision of the Tax Court is affirmed. II. In Basic Bible Church of America v. Commissioner, No. 83-2583, taxpayer appeals a determination that it failed to establish its status .as an exempt organization within the meaning of section 501 of the Code. Taxpayer, an auxiliary branch of the" }, { "docid": "21728522", "title": "", "text": "U.S.C. § 6673. That section permits the Tax Court to assess damages of up to $5,000 against taxpayers who file frivolous or groundless proceedings. Taxpayers here had no reasonable basis to believe that wages were not properly subject to income taxes given the universal and longstanding rejection of this argument. Moreover, they had ample warning that a frivolous petition such as theirs would likely result in the exercise of the Tax Court’s statutory authority to assess damages. See Hatfield v. Commissioner, 68 T.C. 895, 899 (1977); Crowder v. Commissioner, 47 T.C.M. (PH) ¶78,273 (1978); Clippinger v. Commissioner, 47 T.C.M. (P-H) ¶ 78,107 (1978); Sydnes v. Commissioner, 74 T.C. 864, 870-73 (1980), affd, 647 F.2d 813 (8th Cir.1981); Abrams v. Commissioner, 82 T.C. No. 29 (1984). Accordingly, the decision of the Tax Court is affirmed. II. In Basic Bible Church of America v. Commissioner, No. 83-2583, taxpayer appeals a determination that it failed to establish its status .as an exempt organization within the meaning of section 501 of the Code. Taxpayer, an auxiliary branch of the Basic Bible Church of America, was formed under Wisconsin law as an unincorporated association. In 1978, the Internal Revenue Service (the “IRS”) requested taxpayer to support its claim of tax exemption as a religious organization. Taxpayer failed to respond in a meaningful way to the request and was ultimately denied exempt status because of this failure. Taxpayer appealed to the Tax Court, seeking a declaratory judgment, pursuant to 26 U.S.C. § 7428, that it qualified as an exempt organization. The court determined that taxpayer had failed to show that it met the prerequisites, set forth in section 501(c)(3) of the Code, necessary to qualify for exemption. 74 T.C. 846. Taxpayer appeals. Exemption from income taxation is a matter of legislative grace. A taxpayer requesting an exemption must demonstrate compliance with the specific requirements set forth in the statute granting the exemption. Christian Echoes National Ministry v. United States, 470 F.2d 849 (10th Cir.1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973); Parker v. Commissioner, 365 F.2d 792 (8th Cir.1966), cert. denied," }, { "docid": "8071659", "title": "", "text": "and (2) “the Court relied on statements in the respondent’s briefs which are untrue in Sydnes v. Commissioner, 68 T.C. 170 (1977),” and which “respondent has steadfastly refused to correct.” Petitioner’s argument is baseless. Both of the above grounds have been persistently pursued by petitioner in all three of the cases he has instituted in this Court and, in all three cases, have been rejected. Our opinion in Sydnes v. Commissioner, 68 T.C. 170 (1977), with respect to the mortgage payment issue is solidly backed up by the record presented to the Court. Petitioner fully participated in that proceeding and in the appeal that ensued upon petitioner’s filing of a notice of appeal. Respondent, on the other hand, maintains that by reason of the two prior decisions of this Court involving an issue identical to that before us now, petitioner is estopped from disputing the determined deficiency for 1975. We agree. For more than 30 years, it has been firmly entrenched in the law that collateral estoppel (estoppel by judgment) in a tax case is applicable if (1) the parties are the same; (2) the issue is identical; (3) the parties have actually litigated the issue and it has been judicially determined; and (4) there has been no change in the applicable facts or controlling legal principles. Commissioner v. Sunnen, 333 U.S. 591 (1948). While the doctrine of res judicata applies only to the same cause of action arising between the same parties, collateral estoppel applies in a different cause of action. Cromwell v. County of Sac, 94 U.S. 351, 352-353 (1876); Amos v. Commissioner, 43 T.C. 50, 53 (1964), affd. 360 F.2d 358 (4th Cir. 1965). Here, we are confronted with two earlier cases between this petitioner and the Commissioner of Internal Revenue which were brought to judgment in this Court on facts almost identical to those now before us. All of the criteria necessary to impose the doctrine of collateral estoppel are present. Although a different tax year is here involved, the doctrine is available to relieve this Court, other courts, and the Government from redundant litigation. Tait" }, { "docid": "8071658", "title": "", "text": "and 9: 8. In Sydnes v. Commissioner, Docket No. 1889-77,[ ] decided without opinion, November 7, 1979, the Tax Court granted respondent’s motion for summary judgment, which was based on the ground that, by reason of the prior decision in Sydnes v. Commissioner, 68 T.C. 170 (1977), affd in part and rev’d in part, 577 F.2d 60 (8th Cir. 1978), the petitioner was prohibited by the doctrine of collateral estoppel (estoppel by judgment) from disputing the deficiencies determined by the respondent in that case. 9. The deficiency in dispute in this case arises from a determination that is identical in all respects to those decided in the above-mentioned proceedings and the controlling facts and applicable legal principles remain unchanged.[ ] [Emphasis in original.] The petition filed in this case is frivolous and was filed merely for delay. Petitioner argues that the mortgage payments in dispute are deductible on two grounds — (1) the payments were made in lieu of support and maintenance as provided in section 71 and, accordingly, they are deductible under section 215, and (2) “the Court relied on statements in the respondent’s briefs which are untrue in Sydnes v. Commissioner, 68 T.C. 170 (1977),” and which “respondent has steadfastly refused to correct.” Petitioner’s argument is baseless. Both of the above grounds have been persistently pursued by petitioner in all three of the cases he has instituted in this Court and, in all three cases, have been rejected. Our opinion in Sydnes v. Commissioner, 68 T.C. 170 (1977), with respect to the mortgage payment issue is solidly backed up by the record presented to the Court. Petitioner fully participated in that proceeding and in the appeal that ensued upon petitioner’s filing of a notice of appeal. Respondent, on the other hand, maintains that by reason of the two prior decisions of this Court involving an issue identical to that before us now, petitioner is estopped from disputing the determined deficiency for 1975. We agree. For more than 30 years, it has been firmly entrenched in the law that collateral estoppel (estoppel by judgment) in a tax case is" }, { "docid": "19055826", "title": "", "text": "72 L.Ed. 177] (1927). The greatness of our nation is in no small part due to the willingness of our citizens to honestly and fairly participate in our tax collection system which depends upon self-assessment. Any citizen may resort to the courts whenever he or she in good faith and with a colorable claim desires to challenge the Commissioner’s determination; but that does not mean that a citizen may resort to the courts merely to vent his or her anger and attempt symbolically to throw a wrench at the system. Access to the courts depends upon a real and actual wrong — not an imagined wrong — which is susceptible of judicial resolution. General grievances against the policies of the Government, or against the tax system as a whole, are not the types of controversies to be resolved in the courts; Congress is the appropriate body to which such matters should be referred. Although the court did not inipose damages in Hatfield, it warned that it would give “serious consideration” to imposing section 6673 damages in future cases, 68 T.C. at 900, and reiterated that warning in Crowder v. Commissioner, 37 T.C.M. (CCH) 1173, 1173-3 (1978). Nonetheless, the number of tax protest petitions continued to increase. In 1979, the court for the first time, upon a motion by the Commissioner, awarded section 6673 damages. ‘ Wilkinson v. Commissioner, 71 T.C. 633 (1979). The following year the court awarded section 6673 damages for the first time, sua sponte, Sydnes v. Commissioner, 74 T.C. 864 (1980), and this court sustained that award on appeal. Sydnes v. Commissioner, 647 F.2d 813 (8th Cir.1981). Despite the warnings and the imposition of section 6673 damages, the number of tax protest petitions continued to increase, see Grimes v. Commissioner, 82 T.C. 235, 238 (1984), and the Tax Court issued further warnings that it would begin to dispose of these cases summarily. McCoy v. Commissioner, 76 T.C. 1027, 1029-30 (1981), aff'd, 696 F.2d 1234 (9th Cir.1983). In an attempt to stem the huge increase in the Tax Court’s docket attributable to tax protest suits, Congress amended section" }, { "docid": "17281936", "title": "", "text": "[under section 6673].” Hatfield v. Commissioner, supra at 900.. Similar warnings were promulgated in Crowder v. Commissioner, T.C. Memo. 1978-273, and Clippinger v. Commissioner, T.C. Memo. 1978-107. Tax protest petitions continued to be filed with this Court with increased frequency and, finally, upon motion of respondent, we began awarding damages to the United States in appropriate cases. See Wilkinson v. Commissioner, 71 T.C. 633 (1979), which was reviewed by the Court; Greenberg v. Commissioner, 73 T.C. 806 (1980). Shortly after Greenberg was issued we, for the first time, awarded damages in a proper circumstance on our own motion. Sydnes v. Commissioner, 74 T.C. 864, 870-873 (1980), affd. 647 F.2d 813 (8th Cir. 1981). Despite these opinions, petitions filed merely for delay continued to overburden this Court’s docket. Taking cognizance of this fact, on June 15, 1981, we aptly and cogently stated— It may be appropriate to note further that this Court has been flooded with a large number of so-called tax protester cases in which thoroughly meritless issues have been raised in, at best, misguided reliance upon lofty principles. Such cases tend to disrupt the orderly conduct of serious litigation in this Court, and the issues raised therein are of the type that have been consistently decided against such protesters and their contentions often characterized as frivolous. The time has arrived when the Court should deal summarily and decisively with such cases without engaging in scholarly' discussion of the issues or attempting to soothe the feelings of the petitioners by referring to the supposed \"sincerity” of their wildly espoused positions. [McCoy v. Commissioner, 76 T.C. 1027, 1029-1030 (1981), affd. 696 F.2d 1234 (9th Cir. 1983). Emphasis added.] The Congress of the United States in its expressed desire to stem \"the ever-increasing caseload of the Tax Court,” amended section 6673 and made that amendment applicable \"to Tax Court cases begun on or after January 1, 1983.” Section 6673, as amended, provides— Whenever it appears to the Tax Court that proceedings before it have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer’s position in such proceedings" } ]

[ { "docid": "23133706", "title": "", "text": "States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975). On the other hand, it has been asserted that grand juries are basically law enforcement agencies and are for all practical purposes an investigative and prosecutorial arm of the Executive branch of the government. See In re Grand Jury Proceedings, 486 F.2d 85, 89-90 (3d Cir. 1973). To the extent that these apparently conflicting statements reflect the view that the functions of the grand jury are intimately related to the functions of court and prosecutor, we have no disagreement with them. That view is irrefutable as a matter of fact. But under the constitutional scheme, the grand jury is not and should not be captive to any of the three branches. The grand jury is a preconstitutional institution, see United States v. Calandra, 414 U.S. 338, 342 — 43, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), given constitutional stature by the Fifth Amendment but not relegated by the Constitution to a position within any of the three branches of the government. “The federal grand jury is a constitutional fixture in its own right . .” Nixon v. Sirica, 159 U.S.App. D.C. 58, 487 F.2d 700, 712 n.54 (1973); but cf. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959). Respecting the work of the grand jury, both court and prosecutor play supportive and complementary roles. As a practical matter, the grand jury generally relies on the prosecutor to determine what witnesses to call. Also, in practice the prosecutor conducts the examination of the witnesses and otherwise determines what evidence to present before the grand jury. See 1 Wright, Federal Practice and Procedure § 101, at p. 152 (1969); 8 Moore’s Federal Practice § 6.02[1] (2d ed. 1976); Note, The Grand Jury as an Investigative Body, 74 Harv.L.Rev. 590, 596 (1961). In addition, it is the prosecutor who normally prepares the indictment, see 8 Moore’s Federal Practice § 6.02[2], at p. 6-18 (2d ed. 1976), although of course the grand jury must review the indictment and adopt it as its own. See Gaither v. United" } ]

[ { "docid": "13612927", "title": "", "text": "95 S.Ct. 2424, 44 L.Ed.2d 685 (1975), and require the government to show that the documents sought are relevant to an investigation properly within the grand jury’s jurisdiction and not sought primarily for another purpose. The government does not dispute that the district court enforced the subpoena without making a finding that the documents sought were relevant or necessary for the grand jury’s investigation. Rather, the government argues this case is controlled by In re Grand Jury Proceedings. United States v. McLean, 565 F.2d 318 (5th Cir.1977), and In re Grand Jury Proceedings. United States v. Guerrero, 567 F.2d 281 (5th Cir.1978), where the Fifth Circuit declined to follow the Schofield rule absent some showing of harassment or prosecutorial misuse of the system. The bank argues that the Schofield rule, however, should be applied to cases such as this where foreign relations are implicated and where alternative methods are available to obtain the requested information that do not require the Bank to violate foreign law. The guidelines established by the Third Circuit in Schofield are not mandated by the Constitution; the Third Circuit imposed the requirements under that court’s inherent supervisory power. Schofield, 486 F.2d at 89; McLean, 565 F.2d at 320. We decline to impose any undue restrictions upon the grand jury investigative process pursuant to this court’s supervisory power. It is unnecessary to repeat here the vital role the grand jury plays in our system of jurisprudence. See, In re Grand Jury Proceedings. United States v. Field, 532 F.2d 404, 407-09 (5th Cir.1976), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976). As stated by the court in McLean: Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). In re Grand Jury Proceedings. United States v. McLean, 565 F.2d at 320. While it is true courts should not impinge upon the political prerogatives of the" }, { "docid": "7719851", "title": "", "text": "proceedings below. We must express grave disquietude with respect to the above discussed aspects of the issuance and “forthwith” production provisions of the subpoena. Justice Brandéis’ warning is as meaningful today as it was when first articulated a half century ago: “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 960 (1928) (Brandeis, J., dissenting). While this court has recognized that federal grand juries “are for all practical purposes an investigative and prosecutorial arm of the executive branch of government,” In re Grand Jury Proceedings, 486 F.2d 85, 90 (3d Cir. 1973), the influence of the United States Attorney’s office on a federal court’s grand jury is not a license to misrepresent. Irrespective of the motivation of the prosecutor, the hard fact is that a misrepresentation was made: the subpoena commanded a forthwith presentation to the grand jury of materials at a time when the United States Attorney’s office may or should have known that the grand jury would not be in session to receive the documents forthwith. Under these circumstances, the grand jury subpoena is no substitute for a proper application before a judicial officer for a search warrant. It was this egregious circumvention of Fourth Amendment procedures that probably led the district court, in denying Hilton’s suppression motion — solely on the issue of standing — to observe, that “in doing so we do not rid ourselves of a chill at the base of the spine. We are old enough to remember how other democratic constitutional systems were brought to destruction by the use of their own legal processes.” This, too, must be said: In the instant case the grand jury, prior to October" }, { "docid": "909178", "title": "", "text": "provide information concerning the conduct and circumstances of his interviews of these lunch wagon operators. The information sought from Hughes is: (1) relevant to the grand jury’s investigation; (2) properly within the grand jury’s jurisdiction; and (3) not sought primarily for another purpose. In the Schofield cases, In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973) and In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 964-66 (3d Cir. 1975), we held that when a district court was called upon in a civil action under 28 U.S.C. § 1826(a) (1976) to issue coercive process to compel grand jury testimony, it should require the United States to make a minimum showing by affidavit that the information sought was relevant to an investigation properly within the grand jury’s jurisdiction, and that the information was not sought primarily for another purpose. We noted that there were defenses to enforcement of grand jury subpoenas, that the information relevant to such defenses ordinarily rests in the hands of the government, and that unlimited discovery would conflict with the grand jury secrecy provisions of Rule 6(e) of the Federal Rules of Criminal Procedure. Balancing these competing considerations, we held “that the party seeking enforcement of a grand jury subpoena. . . . [must] make some minimum showing of the existence of a proper purpose before it can trigger the enforcement machinery of the judicial branch.” Schofield I, 486 F.2d at 92. More recently, in United States v. Oliva, 611 F.2d 23 (3d Cir. 1979), we held that it is the enforcement proceeding, not the issuance of the subpoena, which gives rise to the obligation to file a Schofield affidavit. We noted in Oliva that it is the practice of United States Attorneys in this Circuit to furnish a Scho-field affidavit to any witness who insists upon its production before testifying. A witness, or a third party, who makes a motion to quash is situated, for purposes of the Schofield rule, identically with a witness against whom a section 1826(a) enforcement proceeding is commenced. Indeed, as this case illustrates, the usual" }, { "docid": "7229868", "title": "", "text": "with the grand jury subpoena so long as a lawful grand jury proceeding continues. In re Grand Jury Proceedings, (Pressman), 586 F.2d 724, 725 (9th Cir. 1978); United States v. Woods, 544 F.2d 242, 249-50 (6th Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972); United States v. George, 444 F.2d 310, 314 (6th Cir. 1971). Thus the witnesses here subpoenaed, attorneys for Johanson, cannot refuse to comply with a grand jury subpoena merely because Johanson was indicted subsequent to the service of the subpoena. Furthermore, this avenue of resisting compliance with the grand jury subpoena is unavailable to Johanson because the burden is his to demonstrate that the sole or dominant purpose of seeking the evidence post indictment is to prepare for the pending trial. Universal Manufacturing Co. v. United States, 508 F.2d 684, 685 (8th Cir. 1975); United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972). Johanson has not made any factual showing that the grand jury’s sole or dominant purpose for seeking enforcement of the subpoena is to continue, unlawfully, to investigate him subsequent to his indictment. In the absence of a contrary factual showing, the grand jury proceedings are entitled to a presumption of lawfulness and regularity. In re Grand Jury Proceedings, (Schofield I), 486 F.2d 85, 92 (3d Cir. 1973). Although absent a factual showing of irregularity beyond mere suspicion the prosecutor need not submit an affidavit affirming that the grand jury seeks the documents in aid of its investigation of other persons, he has done so here. He has therewith discharged the government’s burden. See Id. Because the grand jury seeks the documents in connection with an investigation of persons other than Johanson, we conclude that Johanson’s indictment is not a bar to enforcement of the subpoena. If an unlawful purpose in seeking enforcement of the subpoena is shown, this court will not" }, { "docid": "9737384", "title": "", "text": "investigating authorities with a voice exemplar does not constitute a procedure which could be classified as “wholesale intrusions upon the personal security of our citizenry.” Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969). Thus the only question which is before this court is whether there is probable cause to order the defendants to submit their voices to speetrographic analysis. The government appears to be asserting that the existence of an indictment against the defendants for engaging in illegal gambling activity when considered in conjunction with the affidavit submitted by Special Agent Faulkner establishes probable cause for this court to authorize the taking of a voice exemplar. The defendants, on the other hand, urge this court to adopt as per se the rule that an independent showing of probable cause is required regardless of the fact that the persons to be “searched” have been formally charged with the commission of a crime. Probable cause, as that term is used in the Fourth Amendment, requires only that an arrest or seizure be made under circumstances which are “ ‘sufficient in themselves to warrant a man of reasonable caution in the belief’ that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, an arrest warrant can be based upon an indictment because the Grand Jury has determined that there is reason to believe that the person charged has violated the law. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 1503 (1958). However, an indictment does not, of necessity, certify that there is reason to believe that the person charged has evidence of the crime in his possession. It is for this reason that an indictment does not automatically justify the issuance of a search warrant. See United States v. Bailey, 327 F.Supp. 802 (N.D.Ill.1971). But, if a court concludes that the suspicious circumstances found by the Grand Jury are identical to the suspicious circumstancés required for a search warrant, there would seem to be no need to require" }, { "docid": "13835889", "title": "", "text": "S.Ct. at 3137 (stating that the grand jury “has always been extended extraordinary powers of investigation and great responsibility for directing its own efforts.”); United States v. Mandujano, 425 U.S. 564, 571, 96 S.Ct. 1768, 1774, 48 L.Ed.2d 212 (1976); Pittsburgh Plate Glass Co., 360 U.S. at 399-400, 79 S.Ct. at 1241; In re Grand Jury Matter (Appeal of District Council 33), 770 F.2d 36, 40 (3d Cir.) (referring to the “tremendous breadth of the grand jury’s investigatory powers.”), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 558 (1985). Of course, Rule 3.10 does not purport to visit any burdens squarely on the grand jury. Yet, by hampering the prosecutor who serves as its primary agent and advisor, the Rule does so by indirection. “The prosecutor ordinarily brings matters to the attention of the grand jury and gathers the evidence required for the jury’s consideration. Although the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on” the United States Attorney’s office “to secure the evidence or witnesses it requires,” Sells Eng’g, Inc., 463 U.S. at 430, 103 S.Ct. at 3141, and to “draw up and supervise the execution of subpoenas.” Id. at 430 n. 13, 103 S.Ct. at 3141 n. 13; see United States v. Martino, 825 F.2d 754, 761 (3d Cir.1987); Doe v. DiGenova, lid F.2d 74, 80 (D.C.Cir.1985); In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 90 (3d Cir.1973). Depriving the grand jury of this vital assistance doubtless would render it “much less effective” in performing its essential tasks, Sells Eng’g, Inc., 463 U.S. at 430, 103 S.Ct. at 3141, for “[w]ithout thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.” Id. at 424, 103 S.Ct. at 3138. The Third Circuit has expressed strong disapproval of virtually every aspect of Rule 3.10. In In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir.1973), a prospective witness had refused to comply with a grand jury subpoena. The" }, { "docid": "7719850", "title": "", "text": "that the grand jury would not be in session to examine “forthwith” the subpoenaed materials; and (2) the use of the grand jury subpoena was an improper substitute for a search warrant issued by an impartial judicial officer, we are of the opinion that Hilton lacks standing to present such contention. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Wong Sun, supra, it was held that the defendant lacked standing to assert a claim that evidence adduced against him was obtained by federal narcotics agents in a search of a co-defendant’s home without a search and seizure warrant. In so holding, the Court said at page 492, 83 S.Ct. at page 419, 9 L.Ed.2d at page 458: “The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial.” Our disposition in this respect should not be taken as an indication that we condone the practice utilized by the prosecutor in the proceedings below. We must express grave disquietude with respect to the above discussed aspects of the issuance and “forthwith” production provisions of the subpoena. Justice Brandéis’ warning is as meaningful today as it was when first articulated a half century ago: “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 960 (1928) (Brandeis, J., dissenting). While this court has recognized that federal grand juries “are for all practical purposes an investigative and prosecutorial arm of the executive branch of government,” In re Grand Jury Proceedings, 486 F.2d 85, 90 (3d Cir. 1973), the influence of the United States Attorney’s office on" }, { "docid": "22138971", "title": "", "text": "to compel production of voice or handwriting exemplars. Neither, however, involves any question as to the propriety of the grand jury’s investigation, the legitimacy of the purpose for issuing the subpoena, or any nonconstitutional objection to its enforcement. Indeed Justice Stewart’s opinion for the Court in Dionisio quite carefully circumscribes its holding by explicitly reiterating the power of the district courts to control the use of grand jury subpoenas referred to in Justice Powell’s concurring opinion in Branz-burg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issues raised by this appeal were not presented to or passed upon by the Supreme Court in Dionisio and Mara. In considering those issues it is well to start with some fundamental propositions. First, although federal grand juries are called into existence by order of the district court, Fed.R.Crim. P. 6(a); 18 U.S.C. § 3331, they are “basically ... a law enforcement agency.” United States v. Cleary, 265 F.2d 459, 461 (2d Cir.), cert, denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). They are for all practical purposes an investigative and prosecutorial arm of the executive branch of government. See 8 J. Moore, Federal Practice ¶ 6.02[1], [6] (2d ed. Cipes ed. 1972). Second, although like all federal court subpoenas grand jury subpoenas are issued in the name of the district court over the signature of the clerk, they are issued pro forma and in blank to anyone requesting them. Fed.R.Crim.P. 17(a). The court exercises no prior control whatsoever upon their use. Third, although grand jury subpoenas are occasionally discussed as if they were the instrumentalities of the grand jury, they are in fact almost universally instrumentalities of the United States Attorney’s office or of some other investigative or prosecutorial department of the executive branch. Grand jury subpoenas then, when they are brought before the federal courts for enforcement, for all practical purposes are exactly analogous to subpoenas issued by a federal administrative agency on the authority of a statute, without any prior judicial control. In ICC v. Brimson, 154 U.S. 447, 485, 14 S.Ct." }, { "docid": "5739968", "title": "", "text": "F.2d 318 (5th Cir. 1977). . In that case, the government sought enforcement of a subpoena requesting handwriting exemplars without making a showing of probable cause. The court held that enforcement of the subpoena would not constitute an unreasonable search and seizure. The government did, however, supply affidavits showing that the exemp Iars were essential and necessary to the grand jury investigation and were to be used for a limited purpose. . The Schofield rule “has not caused any serious disruption of grand jury proceedings” in the third circuit. Hearings on H.R. 94 Before the Sub-committee on Immigration, Citizenship, and International Law of the House Committee in the Judiciary, 95th Cong., 1st Sess. 1589 (1977). MURNAGHAN, Circuit Judge, dissenting: Regrettably, I find myself unable to concur in the principal proposition for which the majority panel opinion stands. Despite a single decision in the Third Circuit Court of Appeals, In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973), to the contrary, it appears well established by authority, and on reflection well grounded in principle, that the grand jury should be free to subpoena without preliminarily, on a generalized basis, being required to justify the relevance and necessity of its action. Citizenship confers many benefits. It also imputes certain responsibilities, one of which is to aid the government’s search for information. It is sufficiently more likely than not that the search will be for relevant information properly disclosable to relieve the grand jury and government prosecutors of a requirement, applicable in every case, that they first establish probable cause. See, e.g., In re Grand Jury Investigation (McLean), 565 F.2d 318, 320 (5th Cir. 1977) (“In the absence of any witness asserting harassment or prosecutorial misuse of the system, we will not impose upon the government or the district courts any preliminary requirements which would impede the grand jury’s investigative powers.”); In re Grand Jury Proceedings (Hergenroeder), 555 F.2d 686, 686 (9th Cir. 1977) (“In view of the presumption that the government obeys the law, we see no reason to inject into routine grand jury investigations the delay and imposition" }, { "docid": "22893721", "title": "", "text": "S.Ct. 168, 4 L.Ed.2d 134 (1959). We have held above that the government proved only an offense punishable as a misdemeanor. But the standard of proof beyond a reasonable doubt is considerably higher than that of 18 U.S.C. § 3052: “reasonable grounds to believe that the person to be arrested has committed” a felony. Probably the information already in hand from Kuczynski sufficed to justify an arrest without a warrant. Cf. Draper v. United States, 358 U.S. 307, 313-14, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We need not rest our holding that neither Lupo’s nor Szwandrak’s confession was the fruit of an illegal arrest upon the recent decision in Watson. In connection with the suppression motions, the district court found as a fact that neither Lupo nor Szwandrak were under any restraint whatsoever at the time they gave their incriminating statements to the FBI agents. See 18 U.S.C. § 3501(d). The court’s finding, based on credibility judgments, cannot be disregarded. Government of the Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). For purposes of this appeal there was no arrest legal or illegal. C. The abuse of process contention Lupo and Szwandrak next contend that in the exercise of our supervisory power to prevent the misuse of subpoenas issued pursuant to Rule 17, we should prohibit the use of “forthwith” grand jury subpoenas as a means for facilitating investigatory interrogation outside the presumably protective presence of the grand jury. The record here amply supports the contention that the subpoenas were misused. We have in the past made clear that we do exercise supervisory power over the utilization of Rule 17 subpoenas. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973). Rule 17 does not, in our view, authorize the use of grand jury subpoenas as a ploy for the facilitation of office interrogation. Neither the FBI nor the Strike Force nor the United States Attorney has been granted subpoena power for office interrogation outside the presence of the grand jury." }, { "docid": "23254402", "title": "", "text": "of Liberatore’s argument that the government must make a preliminary showing of relevance is revealed by the fact that the sole authority upon which he relies is In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975), and, necessarily, also on its predecessor, In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973). Those decisions are predicated entirely upon the Third Circuit’s supervisory powers over the conduct of civil proceedings within that circuit and upon the federal courts’ supervisory power over grand juries and they are in no way whatever based on constitutional grounds. 507 F.2d at 965-66; id. at 968-69, 95 S.Ct. 2424 (Aldisert, J., dissenting). It is equally clear that the Schofield standards do not constitute the law in this circuit, see, e. g., United States v. Doe (Schwartz), supra, 457 F.2d at 899-901; In re Morgan, supra, 377 F.Supp. at 284, and, even if they did, Liberatore’s argument concerning relevancy is completely destroyed by his concession that the affidavit which the government submitted was entirely sufficient under the Schofield standards to establish that the evidence the grand jury sought was relevant to a legitimate objective of a grand jury investigation. Turning now to Liberatore’s contention that the order adjudging him in contempt must be reversed because the government failed to make a preliminary showing that it was “necessary” that the materials sought be obtained by compulsion of a grand jury subpoena, we conclude that this contention too is foreclosed by the Supreme Court’s decisions in United States v. Dionisio, supra, and United States v. Mara, supra. By urging that we hold that “necessity” be shown, Liberatore would have us rule that the grand jury here was not entitled to demand production of the prints and the handwriting exemplars unless the government could demonstrate that that evidence was not already in the government’s possession and, further, that the evidence demanded could not be obtained by the government through the use of some other, less coercive, means. In addition to the Supreme" }, { "docid": "13612926", "title": "", "text": "the Bank to prosecution under the Bahamian bank secrecy law. The affidavit also showed that the government could obtain an order of judicial assistance from the Supreme Court of the Bahamas allowing disclosure if the subject of the grand jury investigation is a crime under Bahamian law and not solely criminal under United States tax laws. The government did not make a showing that the documents sought are relevant and necessary to the grand jury’s investigation. After the district court entered an order compelling the Bank to comply with the subpoena, the Bank’s Miami agent appeared before the grand jury and formally declined to produce the documents called for by the subpoena. The district court held the Bank in civil contempt and the Bank brings this appeal. II. RELEVANCE OF THE DOCUMENTS The Bank urges this court to follow the Third Circuit’s holdings in In re Grand Jury Proceedings, 486 F.2d 85 (Schofield I), (3rd Cir.1973), and In re Grand Jury Proceedings, 507 F.2d 963 (Schofield II), (3rd Cir. 1975), cert. denied, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975), and require the government to show that the documents sought are relevant to an investigation properly within the grand jury’s jurisdiction and not sought primarily for another purpose. The government does not dispute that the district court enforced the subpoena without making a finding that the documents sought were relevant or necessary for the grand jury’s investigation. Rather, the government argues this case is controlled by In re Grand Jury Proceedings. United States v. McLean, 565 F.2d 318 (5th Cir.1977), and In re Grand Jury Proceedings. United States v. Guerrero, 567 F.2d 281 (5th Cir.1978), where the Fifth Circuit declined to follow the Schofield rule absent some showing of harassment or prosecutorial misuse of the system. The bank argues that the Schofield rule, however, should be applied to cases such as this where foreign relations are implicated and where alternative methods are available to obtain the requested information that do not require the Bank to violate foreign law. The guidelines established by the Third Circuit in Schofield are" }, { "docid": "17121211", "title": "", "text": "L.Ed.2d 561 (1974) (citations, quotation, and footnote omitted). A grand jury proceeding is not an adversary hearing where guilt or innocence is adjudicated but an ex parte investigation to determine if there is probable cause to believe a crime has been committed. The grand jury deliberates in secret and acts “independently of either prosecuting attorney or judge-” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quotation omitted). Because it is essential to the federal criminal justice system, this investigative body has great powers of investigation and inquisition. The grand jury may generally “compel the production of evidence or testimony of witnesses ... unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” Calandra, 414 U.S. at 343, 94 S.Ct. 613. To prevent abuse of this process, this court has required the government to justify a grand jury subpoena by making “some preliminary showing by affidavit that each item [being subpoenaed] is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir.1973). District courts enjoy considerable discretion in determining whether the Schofield affidavit submitted by the government is sufficient to enforce a subpoena. See In re Grand Jury, 103 F.3d 1140, 1145 (3d Cir.1997). If the district court decides that the government should present information beyond the minimal Schofield requirements, it may use in camera proceedings or ex parte affidavits to preserve grand jury secrecy, a procedure we have consistently endorsed. See id.; see also United States v. R. Enters., Inc., 498 U.S. 292, 302, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). The issue came before us recently in In re the Grand Jury Empaneling of the Special Grand Jury, 171 F.3d 826 (3d Cir.1999), where witnesses subpoenaed by the grand jury had refused to testify against their rabbi father on religious grounds. They filed a motion to quash the subpoena. The government opposed the motion and submitted a Schofield affidavit, ex parte" }, { "docid": "16650394", "title": "", "text": "intrusion occasioned by an arrest or investigative stop provide another premise for withholding Fourth Amendment safeguards. The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court. United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972) (Friendly, J.). Ultimately, the assumption of grand jury neutrality — that it is a “protective bulwark standing between the ordinary citizen and the overzealous prosecutor” — justifies that body’s broad investigative powers, its authority to act on tips or rumors and to examine as many witnesses as necessary to ferret out all clues. See Branzburg v. Hayes, supra, 408 U.S. at 701, 92 S.Ct. at 2666; Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569 (1962). Because a compulsory appearance before a grand jury is not an unreasonable seizure within the meaning of the Fourth Amendment, there would not appear to be justification for requiring a Schofield affidavit to establish reasonableness, relevance and propriety in this context. The simple fact of nonappearance provided the government with probable cause to apply for a bench warrant for McNabb. The authority of a court to issue bench warrants to arrest witnesses who fail to appear is, in fact, unquestioned. See Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Blair v. United States, supra, 250 U.S. at 281-82, 39 S.Ct. at 471. Indeed, the necessity to show reasonableness might well invert the grand jury’s function, requiring that body to furnish answers to its questions before it could ask them. Such a dysfunctional demand would be much like the situation described in Hale v. Henkel, in which the witness refused to answer the questions posed on the ground that no" }, { "docid": "22138972", "title": "", "text": "1548 (1959). They are for all practical purposes an investigative and prosecutorial arm of the executive branch of government. See 8 J. Moore, Federal Practice ¶ 6.02[1], [6] (2d ed. Cipes ed. 1972). Second, although like all federal court subpoenas grand jury subpoenas are issued in the name of the district court over the signature of the clerk, they are issued pro forma and in blank to anyone requesting them. Fed.R.Crim.P. 17(a). The court exercises no prior control whatsoever upon their use. Third, although grand jury subpoenas are occasionally discussed as if they were the instrumentalities of the grand jury, they are in fact almost universally instrumentalities of the United States Attorney’s office or of some other investigative or prosecutorial department of the executive branch. Grand jury subpoenas then, when they are brought before the federal courts for enforcement, for all practical purposes are exactly analogous to subpoenas issued by a federal administrative agency on the authority of a statute, without any prior judicial control. In ICC v. Brimson, 154 U.S. 447, 485, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894), the Supreme Court stated that an administrative agency could not self enforce its subpoenas by fine or imprisonment, thereby insulating them from judicial review, but must seek a judicial enforcement order. Penfield Co. v. SEC, 330 U.S. 585, 67 S.Ct. 918, 91 L. Ed. 1117 (1947), recognizes that civil contempt is the appropriate means for compelling obedience to such an enforcement order. In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 90 L.Ed. 614 (1946), the Court indicated that an administrative subpoena and a grand jury subpoena performed essentially the same function, and stated: “The result therefore sustains the Administrator’s position that his investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury’s, or the court’s in issuing other pretrial orders for the discovery of evidence, and is governed by the same limitations. These are that he shall not act arbitrarily or in excess of his statutory authority, but this does not" }, { "docid": "22138970", "title": "", "text": "essential and necessary to the grand jury investigation and would be used solely to determine whether Mara was the author of certain writings. The Seventh Circuit reversed. Relying on its Dionisio holding it held that an ex parte proceeding was inadequate and that in addition to the need for comparison the Government must establish that exemplars were unavailable from another source. In re September 1971 Grand Jury (Richard J. Mara), 454 F.2d 580 (7th Cir. 1971). In both cases the Supreme Court reversed. The holding in Dionisio is clear: “Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that Court for further proceedings consistent with this opinion.” 410 U. S. at 18, 93 S.Ct. at 773. Its holding in Mara reiterates that in Dionisio. Both hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars. Neither, however, involves any question as to the propriety of the grand jury’s investigation, the legitimacy of the purpose for issuing the subpoena, or any nonconstitutional objection to its enforcement. Indeed Justice Stewart’s opinion for the Court in Dionisio quite carefully circumscribes its holding by explicitly reiterating the power of the district courts to control the use of grand jury subpoenas referred to in Justice Powell’s concurring opinion in Branz-burg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issues raised by this appeal were not presented to or passed upon by the Supreme Court in Dionisio and Mara. In considering those issues it is well to start with some fundamental propositions. First, although federal grand juries are called into existence by order of the district court, Fed.R.Crim. P. 6(a); 18 U.S.C. § 3331, they are “basically ... a law enforcement agency.” United States v. Cleary, 265 F.2d 459, 461 (2d Cir.), cert, denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d" }, { "docid": "10252350", "title": "", "text": "become the equivalent of a finding of probable cause for a warrant to search that person’s home, his car, or his business office. Probable cause must likewise be shown for any of these searches (except, of course, as regards a search incident to a lawful arrest). This distinction is the same as applies in the traditional warrant situation: the mere fact that probable cause has been shown that authorizes a proper warrant of arrest of an individual does not authorize the arresting officer to search beyond the limits of a search incident to that arrest. Chimel v. California, supra. A specific showing of probable cause in addition to that shown for the arrest warrant is needed before this search may be properly authorized. Applying these rules to the instant case, it becomes evident that the indictment of these defendants for conspiracy authorized an arrest warrant to be issued against them absent any additional showing of probable cause for arrest, but, without a further showing of probable cause to authorize a specific search or seizure, the seizure sought by the Government cannot constitutionally be authorized. The proposition derived by the Government from the two cases it cites is correct only in that probable cause for an arrest warrant is supplied by an indictment. These cases, however, have no application whatsoever to the issue of whether an indictment likewise presents probable cause for a specific search not incident to that arrest. We have concluded on the facts of this case that it does not. The logic of that conclusion is indicated in the factual circumstances of this case. The three defendants involved in this petition, as well as others from whom the Government seeks exemplars, have not been indicted for forging any documents. It is obvious that the grand jury did not reach the conclusion that probable cause existed to indict these defendants for any acts of forgery. Rather, as indicated, these defendants are each charged solely in the conspiracy count. No new or additional reasons to suggest probable cause have been proffered by the Government. Although the Government states that it" }, { "docid": "13835890", "title": "", "text": "evidence or witnesses it requires,” Sells Eng’g, Inc., 463 U.S. at 430, 103 S.Ct. at 3141, and to “draw up and supervise the execution of subpoenas.” Id. at 430 n. 13, 103 S.Ct. at 3141 n. 13; see United States v. Martino, 825 F.2d 754, 761 (3d Cir.1987); Doe v. DiGenova, lid F.2d 74, 80 (D.C.Cir.1985); In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 90 (3d Cir.1973). Depriving the grand jury of this vital assistance doubtless would render it “much less effective” in performing its essential tasks, Sells Eng’g, Inc., 463 U.S. at 430, 103 S.Ct. at 3141, for “[w]ithout thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.” Id. at 424, 103 S.Ct. at 3138. The Third Circuit has expressed strong disapproval of virtually every aspect of Rule 3.10. In In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir.1973), a prospective witness had refused to comply with a grand jury subpoena. The United States filed an application to enforce the subpoena under 28 U.S.C. § 1826(a), which constituted its only means to exact compliance. The Court held that when a district court is moved to issue coercive process under that section, it should require the Government to make a minimum showing by affidavit that the in: formation demanded is relevant to an investigation properly within the grand jury’s jurisdiction and is not sought primarily for another purpose. Id. at 93. Accord In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir.), cert. denied, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). The Third Circuit has made clear, however, that Schofield I “did not deal with procedural safeguards surrounding the issuance of grand jury subpoenas,” United States v. Oliva, 611 F.2d 23, 25 (3d Cir.1979), and did “not purport to encompass the appropriateness of an appearance before the grand jury.” In re Grand Jury Proceedings (Appeal of McNabb), 658 F.2d 211, 213 (3d Cir.1981) (emphasis in original). Rather, because Schofield I addressed “the" }, { "docid": "10252349", "title": "", "text": "probable cause existed for the indictment also establishes that element for the purpose of issuing a warrant for the apprehension of the person so charged. We fully agree with this conclusion because, before the grand jury may issue the indictment in the first instance, it must be convinced that probable cause exists that the person so charged committed an offense against the State. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968), cert. denied, Strang v. United States, 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969). This test, if not identical, is very similar to the probable cause test applied by a Commissioner in issuing a warrant for arrest, Rule 4, Fed.R.Crim.P. It is completely logical then to conclude that the grand jury’s finding of probable cause is equally as valid as the similar finding made by a Commissioner. But the finding of probable cause for arrest of an individual that accrues from his being indicted does not, however, become the equivalent of a finding of probable cause for a warrant to search that person’s home, his car, or his business office. Probable cause must likewise be shown for any of these searches (except, of course, as regards a search incident to a lawful arrest). This distinction is the same as applies in the traditional warrant situation: the mere fact that probable cause has been shown that authorizes a proper warrant of arrest of an individual does not authorize the arresting officer to search beyond the limits of a search incident to that arrest. Chimel v. California, supra. A specific showing of probable cause in addition to that shown for the arrest warrant is needed before this search may be properly authorized. Applying these rules to the instant case, it becomes evident that the indictment of these defendants for conspiracy authorized an arrest warrant to be issued against them absent any additional showing of probable cause for arrest, but, without a further showing of probable cause to authorize a specific search or seizure, the" }, { "docid": "16687662", "title": "", "text": "argues, first, that two broad types of prosecutorial misconduct, use of “perjured” testimony and “slanted” presentation of applicable law, deprived him of due process before the grand jury. This contention is without merit. In United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), this court found that a prosecutor’s presentation of perjured testimony relating to a material matter resulted in a denial of due process before a grand jury. More recent decisions from this circuit have suggested that prosecutorial misconduct must be “flagrant” to violate due process. See, e. g., United States v. Vargas-Rios, 607 F.2d 831 (9th Cir. 1979); United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). Nothing in the record of this case supports an inference that the prosecutor was aware of any inaccuracy in the testimony presented. Nor were the alleged inaccuracies material. Similarly, any “slanting” or evasiveness by the prosecutor in responding to grand jurors’ questions concerning Bettencourt’s legal rights while in the Federal Building did not so mislead or prejudice the grand jury as to deny due process. The grand jury transcript demonstrates the panel’s independence in exploring Bettencourt’s authority to observe and photograph the search. Any prosecutorial misconduct in this respect does not warrant reversing Bettencourt’s conviction under our necessarily limited review of the underlying indictment. See United States v. Chanen, 549 F.2d 1306 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). Bettencourt next contends that the admission of evidence concerning his earlier state arrest was improper for three reasons. First, he claims that the police record upon which Detective Foster relied in testifying was Jencks Act material which the government had agreed to disclose to Bettencourt before trial but had not disclosed. Second, he claims that evidence concerning the prior incident was inadmissible under Fed.R.Evid. 403. And, finally, because the state arrest had been expunged, he claims that Detective Foster’s testimony violated Bettencourt’s “reasonable expectation of privacy” concerning his arrest. We reject Bettencourt’s arguments concerning the release of Jencks Act material." } ]

[ { "docid": "8410862", "title": "", "text": "1201 et seq. (1982), requires strip mine operators to remit for deposit in the Abandoned Mine Reclamation Fund a reclamation fee of 35 cents per ton of coal mined. 30 U.S.C. § 1232(a). A preliminary question in River Coal was whether these “fees” are in fact “taxes” and nondis-chargeable in bankruptcy. The district court held that the fees are taxes and the debtor in Chapter 11 proceedings argued on appeal that they are true fees. This court concluded that the reclamation fees are taxes and recited several characteristics which distinguish governmentally imposed fees from taxes. We quoted from the opinion of the Supreme Court in National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 340-41, 94 S.Ct. 1146, 1148-49, 39 L.Ed.2d 370 (1974): A fee ... is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society. This court determined that “the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer.” 748 F.2d at 1106. The federal statute under consideration in River Coal requires a permit fee as well as reclamation fees, and this court noted the difference between the two charges: The permit is issued at the request of an operator and bestows an individual benefit — the privilege of operating a surface mine — on the applicant. It is similar to a license to practice a profession or to conduct a broadcast station. The abandoned mine reclamation fee is quite different. It is imposed as an additional charge on operators who have already received permits. Unlike the permit fee, the reclamation fee does not confer a benefit on the operator different from that enjoyed by the general public when environmental conditions are improved. On the contrary, it is an involuntary exaction for" } ]

[ { "docid": "10527395", "title": "", "text": "River Coal Co., Inc., 748 F.2d 1103, 12 Bankr.Ct.Dec. 606, 11 Collier Bankr.Cas.2d 1432 (6th Cir.1984). The important point of the decision is the court of appeals’ distinction between a mining permit fee and the mine reclamation fees. The court implied that the fee for a mining permit is not a tax because (1) a mining permit fee is voluntary, at least in the sense that a person can choose not to mine coal, and (2) a mining permit bestows an individual benefit on the person. The court of appeals, however, did not decide that a mining permit fee is not a tax. The court of appeals was not faced with that question. It simply used the mining permit fee as a straw man to be knocked down for the purpose of showing that the mine reclamation fees were a tax. The court of appeals also based the distinction between a mining permit fee and a mine reclamation fee on a case that had nothing to do with the meaning of “tax” in the bankruptcy statutes. National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). The case involved the constitutionality of a grant of power from Congress to the FCC (Federal Communications Commission). The FCC had imposed on cable television companies a fee that was determined the same way as a gross receipts tax. The usual question in delegation of authority cases is whether Congress has set clear enough guidelines to assure that the agency is carrying out the will of Congress. Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Justice Douglas, however, phrased the question as whether the FCC had imposed a fee or a tax. The Supreme Court held that the statutory guidelines constitutionally allowed the FCC to impose fees according to the value to the cable television companies of benefits bestowed on them by the FCC. However, the court held that the FCC could not constitutionally have the authority to impose fees under the vague standard of public policy, interest served, and" }, { "docid": "17940142", "title": "", "text": "Analysis of the Relevant Case Law Additional support for the conclusion that Ohio workers’ compensation premiums are an excise tax entitled to priority may be found in two Sixth Circuit opinions which decided the priority of certain mine operation payments. United States v. River Coal Company, Inc., 748 F.2d 1103 (6th Cir.1984); Spiers v. Ohio Dep't of Natural Resources (In re Jenny Lynn Mining Co.), 780 F.2d 585 (6th Cir.1986), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). Neither case mentions Lorber. River Coal, decided under the Act, held that abandoned mine reclamation fees were taxes for purposes of bankruptcy priority. 748 F.2d at 1106. The charge in question was an exaction imposed on mine operators for the purpose of creating a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” Id. All mine operators, each of whom had already paid a permit fee in order to operate a mine, were to deposit a set sum of money into the fund according to the amount of coal produced. Id.; see 30 U.S.C. § 1232(a). The court’s analysis began with a reference to the Supreme Court’s decision in National Cable: “Congress may impose a tax without regard to the benefits bestowed on the taxpayer, considering only the need for revenue to fund the government’s public functions. ‘A fee, however, is incident to a voluntary act\" River Coal, 748 F.2d at 1106 (quoting National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1149). The court then employed the following test to determine whether the charge was a fee or a tax for purposes of bankruptcy priority: “The test has been variously stated, but the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer.” River Coal, 748 F.2d at 1106. Although the reclamation fee at issue was found to possess the essential characteristics of a tax, the court noted a clear distinction between the fee in question and mining permit fees. Id. This" }, { "docid": "8410857", "title": "", "text": "wrote: Where a Proof of Claim is based upon the failure to perform a state statutory act, it will not generally be found necessary to attach documentation of the enactment. The parties agreed that the claim was entitled to priority if the permit fee was in fact an excise tax. The permit fee requirement was contained in Ohio Revised Code (O.R.C.) § 1513.07(A) (1978), which provided in part: No licensed operator shall conduct a strip mining operation without a permit for such operation issued by the chief of the division of reclamation. The chief shall issue an order granting a permit upon the approval by him of an application, as required by this section, payment of a permit fee in an amount equal to the product of thirty dollars multiplied by the number of acres, estimated in the application, which will comprise the area of land affected within the permit period by the strip mining operation for which the permit is requested, and the deposit of a surety bond, cash, or certificates of deposit as prescribed by division (A) of section 1513.08 of the Revised Code for the number of acres that the operator states in his application that will be affected during the first year of operation under the permit. Examining the entire reclamation law the bankruptcy judge noted that the bond or money required to be deposited in order to obtain a permit was used both for actual reclamation of land that a strip mine operator failed to reclaim, and for expenses of operating the division of reclamation. He wrote, “[T]he privilege of operating a strip-mine in Ohio carried with it a statutorily imposed charge, or expense of doing business, to support both reclamation and operation of the agency established by the state to implement reclamation.” Defining an excise tax as “a tax imposed upon the performance of an act, the engaging in an occupation, or the enjoyment of a privilege,” the bankruptcy court concluded that the permit fee is an excise tax. The court found the measure of the tax to be tied to “the meeting of" }, { "docid": "18576229", "title": "", "text": "on the applicant. It is similar to a license to practice a profession or to conduct a broadcast station. The abandoned mine reclamation fee is quite different. It is imposed as an additional charge on operators who have already received permits. Unlike the permit fee, the reclamation fee does not confer a benefit on the operator different from that enjoyed by the general public when environmental conditions are improved. On the contrary, it is an involuntary exaction for a public purpose — to create a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” 30 U.S.C. § 1231(c)(1). The reclamation fee has the essential characteristics of a tax, and we conclude it is a “tax” for the purposes of § 17 of the Act. III. The “general rule” that a creditor is allowed interest on his debt only to the time a petition in bankruptcy is filed has no application to nondischargeable debts being asserted against the bankruptcy debtor and not against the bankruptcy estate. In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the Supreme Court distinguished nondischargeable debts from others in permitting recovery of post-petition interest: In most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt repayment and, thus, an integral part of a continuing debt. Interest on a tax debt would seem to fit that description. Thus, logic and reason indicate that post-petition interest on a tax claim excepted from discharge by § 17 of the Act should be recoverable in a later action against the debtor personally, and there is no evidence of any congressional intent to the contrary. 376 U.S. at 360, 84 S.Ct. at 907. As in Bruning, the government, in the present case, made a claim against the debtor personally for a debt which was not discharged; it was not a claim against the bankruptcy estate. The Vaughan decision, relied on by the district court in rejecting the government’s claim in this case," }, { "docid": "18576226", "title": "", "text": "and that it would be inequitable to permit recovery of interest after the plan of arrangement was approved and the bankruptcy proceedings were closed. The parties filed cross-motions for summary judgment, agreeing that there were no genuine issues of material fact to be decided. The district court entered judgment for the defendants upon concluding as a matter of law that, having received full payment of the delinquent fees pursuant to the plan of arrangement, the government was not entitled to post-petition interest. In reaching this conclusion the district court followed an earlier decision by another judge of the same court. See In re Vaughan, 292 F.Supp. 731 (E.D.Ky.1968). II. The district court and the government proceeded in this case on the assumption that the abandoned mine reclamation fees are taxes. Under § 17 of the Bankruptcy Act, 11 U.S.C. § 35(a)(1) (1976), a discharge in bankruptcy does not release a debtor from “taxes which became legally due and owing by the bankrupt to the United States ... within three years preceding bankruptcy.” On appeal the defendants argue that the “fees” are just that, not “taxes,” and therefore are not nondischargeable debts within § 17. In making this argument the defendants liken the reclamation fees to permit fees which a coal operator must pay for the privilege of conducting surface mining. 30 U.S.C. § 1252(a). The fact that Congress labeled the reclamation charge a fee rather than a tax is not controlling. In National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974), the Supreme Court identified some of the differing characteristics of taxes and fees. Congress may impose a tax without regard to the benefits bestowed on the taxpayer, considering only the need for revenue to fund the government’s public functions. “A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing these services normally may exact a fee for a grant which, presumably, bestows a" }, { "docid": "8410860", "title": "", "text": "the trustee of the terms of any writing which formed the basis of a claim. The statutory requirement that strip mine operators post performance bonds to obtain permits is clear and unconditional. There was no documentation that would have provided additional notice to the trustee of the basis for the claim. Attaching a copy of the statute would have added nothing to the proof of claim. Proof of claim # 15 was not based on a “writing.” B. Government claims for excise taxes are entitled to priority under 11 U.S.C. § 507(a)(6)(E) (1978). (a) The following expenses and claims have priority in the following order: (6) Sixth, allowed unsecured claims of governmental units, to the extent that such claims are for— M sjc (E) an excise tax on— (i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or (ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition; The bond or deposit required by O.R.C. § 1513.07(A) was “for the payment of an amount of money equal to the estimated cost to the state to perform reclamation ... in case of default by the operator.” O.R.C. § 1513.08(A) (1975). In addition to requiring an operator to pay a fee and deposit a surety bond, cash or certificate of deposit when applying for a strip mining permit, the reclamation statute required additional bonds to cover “increments” as the mining extended to portions of the permit area not covered by the first year of operation. O.R.C. § 1513.08(A) (1981). The trustee contends that ODNR’s claim is not founded on an excise tax, but is merely a general claim for an unsecured debt. This court recently dealt with a somewhat similar question in United States v. River Coal Co., Inc., 748 F.2d 1103 (6th Cir.1984). The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§" }, { "docid": "8410861", "title": "", "text": "not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition; The bond or deposit required by O.R.C. § 1513.07(A) was “for the payment of an amount of money equal to the estimated cost to the state to perform reclamation ... in case of default by the operator.” O.R.C. § 1513.08(A) (1975). In addition to requiring an operator to pay a fee and deposit a surety bond, cash or certificate of deposit when applying for a strip mining permit, the reclamation statute required additional bonds to cover “increments” as the mining extended to portions of the permit area not covered by the first year of operation. O.R.C. § 1513.08(A) (1981). The trustee contends that ODNR’s claim is not founded on an excise tax, but is merely a general claim for an unsecured debt. This court recently dealt with a somewhat similar question in United States v. River Coal Co., Inc., 748 F.2d 1103 (6th Cir.1984). The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201 et seq. (1982), requires strip mine operators to remit for deposit in the Abandoned Mine Reclamation Fund a reclamation fee of 35 cents per ton of coal mined. 30 U.S.C. § 1232(a). A preliminary question in River Coal was whether these “fees” are in fact “taxes” and nondis-chargeable in bankruptcy. The district court held that the fees are taxes and the debtor in Chapter 11 proceedings argued on appeal that they are true fees. This court concluded that the reclamation fees are taxes and recited several characteristics which distinguish governmentally imposed fees from taxes. We quoted from the opinion of the Supreme Court in National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 340-41, 94 S.Ct. 1146, 1148-49, 39 L.Ed.2d 370 (1974): A fee ... is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows" }, { "docid": "8574456", "title": "", "text": "operations.” Title IV, which contains the fee assessment provision, refers to “surface coal mining,” not “surface coal mining operations.” We reject Devil’s\" Hole and Hecla’s argument that Congress intended the two phrases to carry distinct meanings. Congress did not provide a definition of “surface coal mining.” It is difficult to believe that the drafters of the Act did not intend their definition of “surface coal mining operations” to apply to the fee assessment provision which states: “All operators of coal mining operations ... shall pay ... a reclamation fee of 35 cents per ton of coal produced by surface coal mining____” 30 U.S.C. § 1232(a). Devil’s Hole and Hecla urge that we should reject the district court’s holding that their activities are subject to the reclamation fee because that holding is inconsistent with the environmental purposes of the Surface Mining Act. Removing silt dams, they urge, is an environmentally desirable activity which, consistent with the control features of Title V of the Act, ought to be encouraged rather than taxed. This argument, however, would have us confuse the separate congressional purposes of Title IV and Title V. While the latter is aimed at controlling present and future adverse environmental impacts of mining, the former is designed to fund steps to protect “the environment from continued degradation from past surface and underground mining activities.” H.R. No. 95-218 at 136, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad. News 593 at 668. The funding method adopted in Title IV is a fee or excise tax on current users of coal: in this case, ultimately, consumers of electric power purchased from Pennsylvania Power and Light Company. Devil’s Hole and Hecla, pointing to the 20 cents per ton differential between the excise tax on surface mined and underground mined coal, discern a congressional intention to tax the more environmentally hazardous surface mining activity more heavily. From this they reason that Congress could not have intended to tax such environmentally desirable activities as theirs. This line of argument cannot be accepted for its major premise is defective. The House Report explains: This" }, { "docid": "8410865", "title": "", "text": "obtain a permit, was not based on an excise tax. The deposit was required because the operator had requested a permit, and the permit bestowed a discrete benefit on the applicant — the privilege of operating a surface mine. Without the deposit the reclamation division would not have issued a permit. This charge is unlike the “reclamation fee” considered in River Coal. Payment of that fee conferred no benefit on a mine operator. The River Coal operator had already paid the permit fee and received a permit and was then required to make an additional payment of 35 cents per ton of coal mined, for which no additional privilege or benefit was granted. Although the bankruptcy court’s factual finding that a part of the permit fee was used for operation of ODNR was correct, we think that fact is irrelevant. The apparent significance of this finding to the bankruptcy court was that it showed that the general public benefited from the payment of permit fees. One of the characteristics of a tax as opposed to a fee is that a tax is an exaction for public purposes rather than a voluntary payment for a private benefit. However, one purpose of most governmen-tally imposed fees is to support the agency that administers the program under which the fee is charged, presumably serving some public purpose. If this were the deciding factor, all such fees would be “taxes” for bankruptcy purposes. Where a governmental unit imposes a charge in return for bestowing an individual benefit on one who requests permission to engage in a regulated activity, the charge is a fee rather than a tax. We have examined the authorities relied upon by ODNR to support the decisions of the bankruptcy court and the district court, but find them unpersuasive. ODNR cites New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028, 1029, 85 L.Ed. 1333 (1941), where “taxes” are defined for bankruptcy purposes as “those pecuniary burdens laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized" }, { "docid": "18576228", "title": "", "text": "benefit on the applicant, not shared by other members of society.” Id. at 340-41, 94 S.Ct. at 1148-49. The test has been variously stated, but the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer. In a case in which it determined that “premiums” under a worker’s compensation law were “taxes” for purposes of priority under the Bankruptcy Act, the Court of Appeals for the First Circuit found the test to be “whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose.” In re Pan American Paper Mills, Inc., 618 F.2d 159, 162 (1st Cir.1980). There is a clear distinction between the permit fee requirements of the Act and abandoned mine reclamation fees. The permit fee is charged for the privilege of carrying on mining operations. The permit is issued at the request of an operator and bestows an individual benefit — the privilege of operating a surface mine — on the applicant. It is similar to a license to practice a profession or to conduct a broadcast station. The abandoned mine reclamation fee is quite different. It is imposed as an additional charge on operators who have already received permits. Unlike the permit fee, the reclamation fee does not confer a benefit on the operator different from that enjoyed by the general public when environmental conditions are improved. On the contrary, it is an involuntary exaction for a public purpose — to create a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” 30 U.S.C. § 1231(c)(1). The reclamation fee has the essential characteristics of a tax, and we conclude it is a “tax” for the purposes of § 17 of the Act. III. The “general rule” that a creditor is allowed interest on his debt only to the time a petition in bankruptcy is filed has no application to nondischargeable debts being asserted against the bankruptcy debtor and not against the bankruptcy estate." }, { "docid": "17940143", "title": "", "text": "according to the amount of coal produced. Id.; see 30 U.S.C. § 1232(a). The court’s analysis began with a reference to the Supreme Court’s decision in National Cable: “Congress may impose a tax without regard to the benefits bestowed on the taxpayer, considering only the need for revenue to fund the government’s public functions. ‘A fee, however, is incident to a voluntary act\" River Coal, 748 F.2d at 1106 (quoting National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1149). The court then employed the following test to determine whether the charge was a fee or a tax for purposes of bankruptcy priority: “The test has been variously stated, but the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer.” River Coal, 748 F.2d at 1106. Although the reclamation fee at issue was found to possess the essential characteristics of a tax, the court noted a clear distinction between the fee in question and mining permit fees. Id. This distinction was the basis for the holding in Jenny Lynn that the permit fee required to conduct a strip-mining operation was not an excise tax entitled to distributive priority in bankruptcy. 780 F.2d at 588. The permit is issued at the request of an operator and bestows an individual benefit — the privilege of operating a surface mine — on the applicant. It is similar to a license to practice a profession or to conduct a broadcast station. The abandoned mine reclamation fee is quite different. It is imposed as an additional charge on operators who have already received permits. Unlike the permit fee, the reclamation fee does not confer a benefit on the operator different from that enjoyed by the general public when environmental conditions are improved. On the contrary, it is an involuntary exaction for a public purpose — to create a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” Id. (quoting River Coal, 748 F.2d at 1106). See also Williams v." }, { "docid": "18576227", "title": "", "text": "defendants argue that the “fees” are just that, not “taxes,” and therefore are not nondischargeable debts within § 17. In making this argument the defendants liken the reclamation fees to permit fees which a coal operator must pay for the privilege of conducting surface mining. 30 U.S.C. § 1252(a). The fact that Congress labeled the reclamation charge a fee rather than a tax is not controlling. In National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974), the Supreme Court identified some of the differing characteristics of taxes and fees. Congress may impose a tax without regard to the benefits bestowed on the taxpayer, considering only the need for revenue to fund the government’s public functions. “A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing these services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society.” Id. at 340-41, 94 S.Ct. at 1148-49. The test has been variously stated, but the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer. In a case in which it determined that “premiums” under a worker’s compensation law were “taxes” for purposes of priority under the Bankruptcy Act, the Court of Appeals for the First Circuit found the test to be “whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose.” In re Pan American Paper Mills, Inc., 618 F.2d 159, 162 (1st Cir.1980). There is a clear distinction between the permit fee requirements of the Act and abandoned mine reclamation fees. The permit fee is charged for the privilege of carrying on mining operations. The permit is issued at the request of an operator and bestows an individual benefit — the privilege of operating a surface mine —" }, { "docid": "8410864", "title": "", "text": "a public purpose — to create a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” 30 U.S.C. § 1231(c)(1). The reclamation fee has the essential characteristics of a’ tax, and we conclude it is a “tax” for the purposes of § 17 of the Act. Id. The permit requirements of the applicable- Ohio reclamation law in the present case paralleled those of the federal law considered in River Coal. The requirements of performance bonds were almost identical: Both required the amount of the bond to depend on the reclamation requirements of the approved permit, and both required additional bonds for further “increments.” Compare O.R.C. § 1513.08(A) (1981) with 30 U.S.C. § 1259 (1982). In neither case do the permit fees have the characteristics of the reclamation fees, which were a separate requirement. The distinction made between the two exactions in River Coal applies here. We conclude that the claim filed by ODNR, for a bond or cash required to be deposited in order to obtain a permit, was not based on an excise tax. The deposit was required because the operator had requested a permit, and the permit bestowed a discrete benefit on the applicant — the privilege of operating a surface mine. Without the deposit the reclamation division would not have issued a permit. This charge is unlike the “reclamation fee” considered in River Coal. Payment of that fee conferred no benefit on a mine operator. The River Coal operator had already paid the permit fee and received a permit and was then required to make an additional payment of 35 cents per ton of coal mined, for which no additional privilege or benefit was granted. Although the bankruptcy court’s factual finding that a part of the permit fee was used for operation of ODNR was correct, we think that fact is irrelevant. The apparent significance of this finding to the bankruptcy court was that it showed that the general public benefited from the payment of permit fees. One of the characteristics of a tax as opposed to" }, { "docid": "17940144", "title": "", "text": "distinction was the basis for the holding in Jenny Lynn that the permit fee required to conduct a strip-mining operation was not an excise tax entitled to distributive priority in bankruptcy. 780 F.2d at 588. The permit is issued at the request of an operator and bestows an individual benefit — the privilege of operating a surface mine — on the applicant. It is similar to a license to practice a profession or to conduct a broadcast station. The abandoned mine reclamation fee is quite different. It is imposed as an additional charge on operators who have already received permits. Unlike the permit fee, the reclamation fee does not confer a benefit on the operator different from that enjoyed by the general public when environmental conditions are improved. On the contrary, it is an involuntary exaction for a public purpose — to create a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” Id. (quoting River Coal, 748 F.2d at 1106). See also Williams v. Motley, 925 F.2d 741, 743-44 (4th Cir.1991) (adopts River Coal). Although the exactions involved here differ from those at issue in Jenny Lynn and River Coal, the principles articulated are apposite. In Jenny Lynn and River Coal, the Sixth Circuit distinguished between a permit fee and a reclamation fee for purposes of tax priority in bankruptcy. Jenny Lynn, 780 F.2d at 588 (quoting River Coal, 748 F.2d at 1106). The permit fee found not to be a tax in Jenny Lynn was analogized to a licensing fee that members of a profession are required to pay. The reclamation charge held to be a tax entitled to priority in River Coal may be analogized to workers’ compensation premiums, because, like mine reclamation charges, premiums are exacted involuntarily and do not confer an individual benefit on the employer different from that enjoyed by the public generally. The key to the Sixth Circuit test as articulated in River Coal and Jenny Lynn of determining whether a particular exaction is a tax or a fee is the existence of" }, { "docid": "8410858", "title": "", "text": "prescribed by division (A) of section 1513.08 of the Revised Code for the number of acres that the operator states in his application that will be affected during the first year of operation under the permit. Examining the entire reclamation law the bankruptcy judge noted that the bond or money required to be deposited in order to obtain a permit was used both for actual reclamation of land that a strip mine operator failed to reclaim, and for expenses of operating the division of reclamation. He wrote, “[T]he privilege of operating a strip-mine in Ohio carried with it a statutorily imposed charge, or expense of doing business, to support both reclamation and operation of the agency established by the state to implement reclamation.” Defining an excise tax as “a tax imposed upon the performance of an act, the engaging in an occupation, or the enjoyment of a privilege,” the bankruptcy court concluded that the permit fee is an excise tax. The court found the measure of the tax to be tied to “the meeting of responsibilities which exist concomitantly with the enjoyment of the privilege of operating a strip-mine.” On appeal to the district court the trustee argued that ODNR’s claim did not involve an excise tax. According to the trustee, it was either a claim for a penalty or for a license fee, or a claim arising from the debtor’s failure to perform its duties. However, the district court agreed with the bankruptcy court on both issues. The district court determined that the claim was clearly based on a statutory obligation, not on a writing between Jenny Lynn and ODNR. The district court also held that the findings on which the bankruptcy court based its characterization of the permit fee as an excise tax were not clearly erroneous, and upheld the determination that the claim was one for a tax, and therefore entitled to priority. II. A. We agree with the courts below that Rule 302(c) did not apply to ODNR’s claim. With respect to unsecured claims, the purpose of Rule 302(c) was to apprise the bankruptcy court and" }, { "docid": "16472059", "title": "", "text": "if the state has compelled the payment and if the payment serves a public purpose.” See also In re Pan American Paper Mills, 618 F.2d 159, 162 (1st Cir.1980). In Adams, supra, 40 B.R. at 546-47, quoting an earlier Supreme Court case, New Jersey v. Anderson, supra, 203 U.S. at 492, 27 S.Ct. at 140, the court distinguished a “tax” from a “charge” as follows: Under federal law, a tax has certain characteristics which distinguish it from a mere debt or charge. The major distinction lies in whether it is an involuntary charge assessed on all or a charge for services rendered in the nature of a contractual or quasi-contractual obligation as the Anderson Court explained: “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the government. Taxes are not debts ... Debts are obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for the support of the Government, or for some specific purpose authorized by it. The consent of the taxpayer is not necessary for their enforcement. They operate in invitum. Nor is their nature affected by the fact that in some states ... an action of debt may be instituted for their recovery. The form of the procedure cannot change - their character (emphasis added).” The Sixth Circuit, in United States v. River Coal Co., 748 F.2d 1103, 1106 (6th Cir.1984), stated that “the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the taxpayer.” An excise tax has been defined as “an indirect tax, one not directly imposed upon persons or property (citation omitted), and is one that is imposed on the performance of an act, the engaging in any occupation, or the enjoyment or [sic] a privilege.” In re Tri-Manufacturing & Sales Co., 82 B.R. 58, 60 (Bankr.S.D.Ohio 1988). In Smith-Jones, supra, the Minnesota bankruptcy court reviewed the Ohio Workers’ Compensation Fund and concluded that even though “the State insurance fund is in lieu of private workers’ compensation" }, { "docid": "17940145", "title": "", "text": "Motley, 925 F.2d 741, 743-44 (4th Cir.1991) (adopts River Coal). Although the exactions involved here differ from those at issue in Jenny Lynn and River Coal, the principles articulated are apposite. In Jenny Lynn and River Coal, the Sixth Circuit distinguished between a permit fee and a reclamation fee for purposes of tax priority in bankruptcy. Jenny Lynn, 780 F.2d at 588 (quoting River Coal, 748 F.2d at 1106). The permit fee found not to be a tax in Jenny Lynn was analogized to a licensing fee that members of a profession are required to pay. The reclamation charge held to be a tax entitled to priority in River Coal may be analogized to workers’ compensation premiums, because, like mine reclamation charges, premiums are exacted involuntarily and do not confer an individual benefit on the employer different from that enjoyed by the public generally. The key to the Sixth Circuit test as articulated in River Coal and Jenny Lynn of determining whether a particular exaction is a tax or a fee is the existence of an individual benefit or privilege: a fee bestows an individual benefit while a tax is an involuntary burden, which ultimately bestows a benefit upon the general public. The payment of workers’ compensation premiums does not bestow any individual benefit upon the payor. It benefits the public generally. Under this analysis, the premiums are more properly classified as a tax. It is noteworthy that a majority of the courts addressing the issue presently before the Court have determined that workers’ compensation premiums are tax obligations entitled to priority in bankruptcy. The First Circuit, addressing whether premiums due under the Puerto Rico Workmen’s Accident Compensation Act were a tax for purposes of bankruptcy priority, held that the claim for unpaid premiums was entitled to priority under § 64(a)(4) of the Act. In re Pan American Paper Mills, Inc., 618 F.2d 159 (1st Cir.1980). The court reasoned that the premiums were a tax under the Feiring definition: “[Pecuniary obligations laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government" }, { "docid": "17940141", "title": "", "text": "a governmental, public purpose. 4. Imposed Under the Police or Taxing Power of the State In order for the fourth and final prong to be met, it is essential that the premiums be imposed under the state’s police or taxing power. Lorber, 676 F.2d at 1066 (emphasis added). The Trustee contends that, although the workers’ compensation system is mandatory for employers, the premiums are regulatory, not revenue-raising, and, therefore, are not taxes. The Fourth Circuit determined that West Virginia workers’ compensation premiums were a tax even though the West Virginia Workers’ Compensation Act was enacted pursuant to the state’s police power. New Neighborhoods, 886 F.2d at 720. However, under the Lorber analysis it is not necessary to distinguish between the taxing and the police powers of a state because the premiums may be imposed under either power. The Ohio Workers’ Compensation statute was enacted pursuant to the state’s police power. State, ex rel. Yaple v. Creamer, 85 Ohio St. 349, 97 N.E. 602 (1912). Thus, the final prong of the Lorber test is satisfied. B. Analysis of the Relevant Case Law Additional support for the conclusion that Ohio workers’ compensation premiums are an excise tax entitled to priority may be found in two Sixth Circuit opinions which decided the priority of certain mine operation payments. United States v. River Coal Company, Inc., 748 F.2d 1103 (6th Cir.1984); Spiers v. Ohio Dep't of Natural Resources (In re Jenny Lynn Mining Co.), 780 F.2d 585 (6th Cir.1986), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). Neither case mentions Lorber. River Coal, decided under the Act, held that abandoned mine reclamation fees were taxes for purposes of bankruptcy priority. 748 F.2d at 1106. The charge in question was an exaction imposed on mine operators for the purpose of creating a fund to be used for “reclamation and restoration of land and water resources adversely affected by past coal mining.” Id. All mine operators, each of whom had already paid a permit fee in order to operate a mine, were to deposit a set sum of money into the fund" }, { "docid": "10527394", "title": "", "text": "money earned would go to the public purpose of maintaining water service. As a result, the conclusion that the water charges are not a tax cannot rest easily on the theory that the money is not used for a public purpose. Likewise, when the government rents land to an individual for his private use, the rent is still used for the public purpose of maintaining public land. The distinction does not depend on how the government uses the money but whether it is selling, renting, or otherwise doing business with the person who is charged the fee. The state clearly is not selling or renting anything in particular to hunters and fishers when it sells them hunting or fishing licenses. Thus, the fees are not prevented from being a tax on the basis of the distinction between the government’s business debts and tax debts. In United States v. River Coal Co., the court of appeals for this circuit held that mine reclamation fees owed by a coal mining company were a tax. United States v. River Coal Co., Inc., 748 F.2d 1103, 12 Bankr.Ct.Dec. 606, 11 Collier Bankr.Cas.2d 1432 (6th Cir.1984). The important point of the decision is the court of appeals’ distinction between a mining permit fee and the mine reclamation fees. The court implied that the fee for a mining permit is not a tax because (1) a mining permit fee is voluntary, at least in the sense that a person can choose not to mine coal, and (2) a mining permit bestows an individual benefit on the person. The court of appeals, however, did not decide that a mining permit fee is not a tax. The court of appeals was not faced with that question. It simply used the mining permit fee as a straw man to be knocked down for the purpose of showing that the mine reclamation fees were a tax. The court of appeals also based the distinction between a mining permit fee and a mine reclamation fee on a case that had nothing to do with the meaning of “tax” in the bankruptcy" }, { "docid": "2830892", "title": "", "text": "commerce, would not be immune from the restrictions of the Export Clause if the court found the charge actually to be a tax or duty on exports. The court looks to substance over nomenclature. U.S. Shoe, 907 F.Supp. 408, 19 C.I.T. at 1288. With this admonition in mind, the court cannot overlook the plethora of decisions which have consistently concluded that the reclamation fee, contrary to its title, is actually a tax. River Coal, 748 F.2d at 1106 (explaining that the reclamation fee “is an involuntary exaction for a public purpose ... [which] has the essential characteristics of a tax----”); Drummond Coal, 796 F.2d at 505 (“[N]owhere does the [SMCRA] specify what elements comprise a ‘taxable’ piece of coal.”) (quoting 610 F.Supp. at 1497); United States v. Ringley, 985 F.2d 185, 187 (4th Cir.1993) (“The [defendants] concede that the reclamation fees at issue in this case are excise taxes ____”); Tri-No, 819 F.2d at 158 (noting that “[t]he reclamation fee is simply an assessment or excise tax____”); United States v. Devil’s Hole, Inc., 747 F.2d 895, 898 (3d Cir.1984) (holding that “[t]he funding method adopted in Title IV is a fee or excise tax ____”); United States v. Fire Ring Fuels, Inc., 788 F.Supp. 326, 329 (E.D.Ky.1991) (concluding that a “reclamation fee is a tax” and that “Reclamation fees are a form of excise taxes____”); Spring Ridge Coal, 793 F.Supp. at 129. Defendant’s efforts to distinguish the above-cited cases are unpersuasive. As defendant correctly points out, none of the cases dealt with the reclamation fee in the export context. This argument, however, does not change the underlying conclusion reached in those cases— that the reclamation fee is a tax. Further, the true import of the above-cited cases lies not only in their holdings, but in their context. While defendant attaches significant weight to context as a distinguishing factor, defendant’s argument actually strengthens plaintiffs’ position rather than weakens it. The Supreme Court has explained that an inquiry under the Export Clause is more strict than an inquiry under other constitutional provisions. In IBM, the Supreme Court refused to allow Commerce Clause" } ]

[ { "docid": "22710958", "title": "", "text": "dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent’s luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics. > We conclude that, under all of the circumstances of this case, the seizure of respondent’s luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place’s conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. In support of his motion, respondent also contended that the detention of his person at both the Miami and La Guardia Airports was not based on reasonable suspicion and that the “sniff test” of his luggage was conducted in a manner that tainted the dog’s reaction. 498 F. Supp. 1217, 1221, 1228 (EDNY 1980). The District Court rejected both contentions. As to the former, it concluded that the agents had reasonable suspicion to believe that Place was engaged in criminal activity when he was detained at the two airports and that the stops were therefore lawful. Id., at 1225, 1226. On appeal, the Court of Appeals did not reach this issue, assuming the existence of reasonable suspicion. Respondent Place cross-petitioned in this Court on the issue of reasonable suspicion, and we denied certiorari. Place v. United States, 457 U. S. 1106 (1982). We therefore have no occasion to address the issue here. The Warrant Clause of the Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In Sanders, the Court explained: “The police acted properly — indeed commendably — in apprehending respondent and his luggage. They had ample probable cause to believe that respondent’s green suitcase contained marihuana. . . . Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping" } ]

[ { "docid": "20030395", "title": "", "text": "Odum’s suit-ease to have it sniffed by a narcotics detection dog. Yet the court concluded that the agents by this time were aware of sufficient facts to create a reasonable suspicion that Odum was involved in narcotics trafficking. The court pointed to the agents’ knowledge: (1) that Odum had paid cash for a one-way ticket from Houston, a source city for narcotics, immediately before the flight’s departure; (2) that upon arriving in Chicago, Odum had scanned the concourse as he walked and had looked over his shoulder three times on the way to the baggage claim area; (3) that Odum had been unable to produce any personal identification; (4) that he had become shaky and nervous upon learning the purpose of the agents’ questions; and (5) that Odum had been traveling under a different name, which he justified with the explanation that he had not purchased his own ticket without responding to the question of who had purchased the ticket for him. The court found that although any one of these factors may arguably be consistent with the conduct of an innocent traveler, when taken together, they provided a reasonable suspicion that Odum was involved in narcotics trafficking. The court therefore denied Odum’s motion to suppress, prompting him to enter a conditional plea of guilt. The district court subsequently sentenced Odum to an imprisonment term of 120 months. II. A. It is by now well-settled that not all encounters between law enforcement agents and private citizens implicate the Fourth Amendment’s ban on unreasonable searches and seizures. See, e.g., United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir.1995) (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968)); United States v. Withers, 972 F.2d 837, 841 (7th Cir.1992). The Supreme Court’s pronouncements on the Fourth Amendment implications of various types of encounters have been distilled by this court into the following three categories: The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe a person has committed or is committing a" }, { "docid": "20030397", "title": "", "text": "crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990) (citations omitted), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); see also United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir.1993); Withers, 972 F.2d at 841. The district judge assigned Odum’s initial discussion with the agents near Midway’s baggage claim area to the third category, finding that the encounter was consensual and thus not a seizure under the Fourth Amendment. That determination has gone unchallenged in this appeal, and we find it entirely consistent with our case law. Indeed, we have repeatedly emphasized that there generally is no seizure when a law enforcement agent merely approaches an individual in an airport and, after identifying himself, begins to ask routine questions relating to the individual’s identification, travel plans, and ticket information. See Rodriguez, 69 F.3d at 141—42; Withers, 972 F.2d at 842; Johnson, 910 F.2d at 1509; United States v. Sterling, 909 F.2d 1078, 1082-83 (7th Cir.1990); United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, the agent’s non-threatening request to search the individual’s luggage generally will not convert a consensual interview into an investigatory stop requiring a reasonable suspicion that the person was or is engaged in criminal activity. See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386; Rodriguez, 69 F.3d at 142; McCarthur, 6 F.3d at 1276. It is clear, however, that a consensual encounter can develop into an investigatory stop through the conduct of the investigating" }, { "docid": "20030410", "title": "", "text": "14.) Gainer’s complaint for a search warrant did not mention such an exchange, however, and the district court did not rely on Mal-loy’s testimony on this point. . Malloy testified that Odum did consent to a search of the black shoulder bag and that he in fact searched the shoulder bag once they arrived at the agents’ office. The search did not reveal any narcotics. (Dec. 7, 1993 Tr. at 13, 15.) . See McCarthur, 6 F.3d at 1276 (consensual encounter developed into investigatory stop when police officer said that luggage would be detained for canine sniff); Sterling, 909 F.2d at 1083 (same); cf. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (Fourth Amendment seizure occurred when suspect was told that his luggage would be taken to a federal judge so that the agents could secure a search warrant). . The government emphasizes one additional fact that apparently raised the agents' suspicions, although the district court never mentioned this fact in its opinion. (See Govt.Br. at 7 n. 5) The government submits that once the agents learned that Odum had no personal identification, Gainer inquired of the reason for Odum’s travel to Houston. Odum apparently indicated that he had been visiting, but he did not reply when asked who he had been visiting. This alleged fact was recited in the government’s response to Odum's suppression motion (R. 28 at 4), but the government cited no evidence that would establish this fact. We have scoured the evidentiary materials before the district court without finding any mention of this exchange. . The lower court in Reid had relied on the following four facts in determining that there was reasonable suspicion to conduct an investigatory stop: (1) the petitioner had arrived from Fort Laud-erdale, which the agent testified is a principal place of origin of cocaine sold elsewhere in the country, (2) the petitioner arrived in the early morning, when law enforcement activity is diminished, (3) he and his companion appeared to the agent to be trying to conceal the fact that they were traveling" }, { "docid": "20030399", "title": "", "text": "officers. See Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion); Sterling, 909 F.2d at 1083. The district court found that to have occurred here once Odum refused to permit a search of the yellow suitcase and the agents declared their intention to detain it for a canine sniff. We agree that at this point, a Fourth Amendment seizure occurred, and the question became whether the agents were then aware of artic-ulable facts sufficient to give rise to a reasonable suspicion that Odum was engaged in narcotics trafficking. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884). The district court found that they were and refused to suppress the cocaine. Odum argues that the court’s finding was in error and, alternatively, that the district court should have conducted an evidentiary hearing before denying his motion. B. This circuit reviews the denial of a motion to suppress under a clearly erroneous standard. McCarthur, 6 F.3d at 1275. Pursuant to the decision in United States v. Spears, 965 F.2d 262, 269-71 (7th Cir.), cert. denied, 506 U.S. 989, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992), we have applied that standard to the review of determinations in .non-warrant cases that there was reasonable suspicion to support an investigatory stop or probable cause to support a search or an arrest. See, e.g., United States v. Ornelas-Ledesma, 16 F.3d 714, 719 (7th Cir.1994); United States v. Smith, 3 F.3d 1088, 1090 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 733, 126 L.Ed.2d 696 (1994). We thus apply the clearly erroneous standard to the district court’s reasonable suspicion finding here, noting, however, that the Supreme Court recently granted certiorari in one of our cases to consider whether Spears sets out the correct standard for the review of such a finding in a non-warrant case. See United States v. Ornelas, 52 F.3d 328 (7th Cir.1995) (unpublished), cert. granted, — U.S. -, 116 S.Ct. 417, 133 L.Ed.2d 334 (1995). In assessing" }, { "docid": "20030405", "title": "", "text": "calm but became nervous and shaky once the agents indicated that they were conducting a narcotics investigation at the airport. We cannot agree with Odum that the facts known to the agents here were less detailed and therefore less suspicious than the facts found insufficient as a matter of law in Reid. The Supreme Court was concerned in that case that three of the four facts relied on by the lower court would apply to “a very large category of presumably innocent travelers,” and that only “the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse” related to Reid’s particular conduct. 448 U.S. at 441,100 S.Ct. at 2754; see also McCarthur, 6 F.3d at 1278 n. 3. Here, however, a number of the facts that raised suspicions about Odum could not generally be ascribed to innocent travelers. Indeed, it could be considered unusual for an airline traveler to purchase a one-way ticket for cash immediately before his flight, to tape the locks on a cheeked suitcase, to conduct countersurveillance in walking through an airport concourse, and to travel without any personal identification. See United States v. Foster, 939 F.2d 445, 449-50 (7th Cir.1991) (listing travel habits of drug couriers); see also McCarthur, 6 F.3d at 1278 (train ticket had been purchased with cash and suspect claimed to have no personal identification); Sterling, 909 F.2d at 1084 (suspect conducted countersurveillance after deplaning and produced no identification). The fact, moreover, that Odum initially appeared calm but became visibly nervous when told that the agents were conducting a narcotics investigation is relevant to the reasonable suspicion inquiry. See McCarthur, 6 F.3d at 1278; United States v. Adebayo, 985 F.2d 1333, 1340 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993); Withers, 972 F.2d at 843; Johnson, 910 F.2d at 1510; Edwards, 898 F.2d at 1277. We thus cannot say that the facts known to the agents at the time of the seizure were insufficient as a matter of law to give rise to a reasonable suspicion that Odum" }, { "docid": "20030387", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. After the district court denied his motion to suppress, Brandon Odum entered a conditional plea of guilty to the charge that he had possessed with the intent to distribute approximately 5.8 kilograms of a substance containing cocaine in violation of 21 U.S.C. § 841(a)(1). He now appeals that conviction, arguing that the district court erred in refusing to suppress the cocaine found by law enforcement agents in a suitcase Odum had transported from Houston to Chicago. Because the district court considered improper facts in determining that the agents had reasonable suspicion to support their detention of the suitcase, we remand to enable the district court to reconsider that question without reference to the improper facts. I. The facts relevant to the suppression issue are derived from Odum’s affidavit, which was incorporated into his motion, from the complaint for search warrant prepared by DEA Narcotics Task Force Agent Martin Gainer, and from the testimony of Agent John Mal-loy, also of the Narcotics Task Force, at Odum’s December 7, 1993 detention hearing. On November 30,1993, immediately before the departure of a Southwest Airlines flight from Houston to Chicago, Odum paid cash for a pre-reserved one-way ticket. Odum asked the ticket agent for cellophane tape to secure the locks on a yellow, hard-sided suitcase, which he then checked with the airline for the trip to Chicago. Because Odum had purchased his ticket and checked the suitcase so close to the flight’s departure time, the suitcase was affixed with a late check-in tag. As Odum proceeded to his flight, the Southwest ticket agent reported her encounter with Odum to Officer Griff Maxwell, a Houston police officer assigned to the airport. Maxwell then called Agent Gainer in Chicago, relaying what he had learned from the ticket agent. Maxwell told Gainer that an African-American male of medium height had approached the Southwest ticket counter immediately before the departure of a Chicago flight and purchased a one-way ticket with cash. Maxwell explained that the man had asked the ticket agent for cellophane tape to secure the locks on a yellow, hard-sided suitcase," }, { "docid": "20030402", "title": "", "text": "much is clear from Terry itself, which instructs courts to consider only “the facts available to the officer at the moment of the seizure or the search.” 392 U.S. at 21-22, 88 S.Ct. at 1879-80 (internal quotation omitted) (emphasis added). Odum contends that the district court violated that rule here when it emphasized in denying his motion that Odum had been traveling under a different name (Brent Owens), had offered in explanation only the fact that he had not purchased his own ticket, and had failed to respond to further inquiries relating to who had purchased the ticket for him. Odum points out that the agents only obtained this information once they took him to their Midway office to prepare a recéipt for the suitcase. The district court found, however, and the government concedes, that a Fourth Amendment seizure had occurred once the agents informed Odum near the baggage claim area that they would detain his suitcase for a sniff search. See, e.g., McCarthur, 6 F.3d at 1276. Thus, any facts learned by the agents in their office could not be used to support the earlier seizure. The government concedes, in fact, that the district court’s consideration of these facts was improper, and it requests a remand for clarification or reconsideration of the issue by the district court. (Govt.Br. at 12,14-15.) As we observed above, this court currently reviews a district court’s conclusion that there was reasonable suspicion to support an investigatory stop under a clearly erroneous standard. Our Spears opinion explains that it is the district court’s task to determine whether law enforcement agents had probable cause or reasonable suspicion to support their actions, and that an appellate panel should not substitute its judgment for that of the lower court. 965 F.2d at 271. The Supreme Court will ultimately determine in Ornelas whether the Spears view is correct, but that decision binds us here, and we agree with the government that it counsels in favor of a remand. There would of course be no reason to remand if Odum is correct in arguing that the circumstances here were insufficient" }, { "docid": "20030401", "title": "", "text": "whether an investigatory stop was supported by reasonable suspicion, “we consider the ‘totality of the circumstances’ as they were presented to the officer at the time of the encounter.” McCarthur, 6 F.3d at 1277 (quoting Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585). This “totality” test encompasses the experience of the law enforcement agent and the behavior and characteristics of the suspect. McCarthur, 6 F.3d at 1278; Withers, 972 F.2d at 843; Sterling, 909 F.2d at 1083-84; see also Sokolow, 490 U.S. at 10 & n. 6, 109 S.Ct. at 1587 & n. 6. Although the test broadly requires consideration of “the whole picture” presented to the officer (Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585 (internal quotation omitted)), it is limited to the moment at which the seizure occurred and thus excludes any facts learned thereafter. Regardless of how compelling the later-learned facts may be, they are not part of the “snapshot” presented to the officer at the time of the seizure. They are therefore irrelevant to the reasonable suspicion equation. That much is clear from Terry itself, which instructs courts to consider only “the facts available to the officer at the moment of the seizure or the search.” 392 U.S. at 21-22, 88 S.Ct. at 1879-80 (internal quotation omitted) (emphasis added). Odum contends that the district court violated that rule here when it emphasized in denying his motion that Odum had been traveling under a different name (Brent Owens), had offered in explanation only the fact that he had not purchased his own ticket, and had failed to respond to further inquiries relating to who had purchased the ticket for him. Odum points out that the agents only obtained this information once they took him to their Midway office to prepare a recéipt for the suitcase. The district court found, however, and the government concedes, that a Fourth Amendment seizure had occurred once the agents informed Odum near the baggage claim area that they would detain his suitcase for a sniff search. See, e.g., McCarthur, 6 F.3d at 1276. Thus, any facts learned by the agents" }, { "docid": "20030396", "title": "", "text": "consistent with the conduct of an innocent traveler, when taken together, they provided a reasonable suspicion that Odum was involved in narcotics trafficking. The court therefore denied Odum’s motion to suppress, prompting him to enter a conditional plea of guilt. The district court subsequently sentenced Odum to an imprisonment term of 120 months. II. A. It is by now well-settled that not all encounters between law enforcement agents and private citizens implicate the Fourth Amendment’s ban on unreasonable searches and seizures. See, e.g., United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir.1995) (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968)); United States v. Withers, 972 F.2d 837, 841 (7th Cir.1992). The Supreme Court’s pronouncements on the Fourth Amendment implications of various types of encounters have been distilled by this court into the following three categories: The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990) (citations omitted), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); see also United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir.1993); Withers, 972 F.2d at 841. The district judge assigned Odum’s initial discussion with the agents near Midway’s baggage claim area to the third category, finding that the encounter was consensual and thus not a seizure under the Fourth Amendment. That determination has gone unchallenged in this appeal, and we find it entirely" }, { "docid": "20030398", "title": "", "text": "consistent with our case law. Indeed, we have repeatedly emphasized that there generally is no seizure when a law enforcement agent merely approaches an individual in an airport and, after identifying himself, begins to ask routine questions relating to the individual’s identification, travel plans, and ticket information. See Rodriguez, 69 F.3d at 141—42; Withers, 972 F.2d at 842; Johnson, 910 F.2d at 1509; United States v. Sterling, 909 F.2d 1078, 1082-83 (7th Cir.1990); United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, the agent’s non-threatening request to search the individual’s luggage generally will not convert a consensual interview into an investigatory stop requiring a reasonable suspicion that the person was or is engaged in criminal activity. See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386; Rodriguez, 69 F.3d at 142; McCarthur, 6 F.3d at 1276. It is clear, however, that a consensual encounter can develop into an investigatory stop through the conduct of the investigating officers. See Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion); Sterling, 909 F.2d at 1083. The district court found that to have occurred here once Odum refused to permit a search of the yellow suitcase and the agents declared their intention to detain it for a canine sniff. We agree that at this point, a Fourth Amendment seizure occurred, and the question became whether the agents were then aware of artic-ulable facts sufficient to give rise to a reasonable suspicion that Odum was engaged in narcotics trafficking. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884). The district court found that they were and refused to suppress the cocaine. Odum argues that the court’s finding was in error and, alternatively, that the district court should have conducted an evidentiary hearing before denying his motion. B. This circuit reviews the denial of a motion to suppress under a clearly" }, { "docid": "20030403", "title": "", "text": "in their office could not be used to support the earlier seizure. The government concedes, in fact, that the district court’s consideration of these facts was improper, and it requests a remand for clarification or reconsideration of the issue by the district court. (Govt.Br. at 12,14-15.) As we observed above, this court currently reviews a district court’s conclusion that there was reasonable suspicion to support an investigatory stop under a clearly erroneous standard. Our Spears opinion explains that it is the district court’s task to determine whether law enforcement agents had probable cause or reasonable suspicion to support their actions, and that an appellate panel should not substitute its judgment for that of the lower court. 965 F.2d at 271. The Supreme Court will ultimately determine in Ornelas whether the Spears view is correct, but that decision binds us here, and we agree with the government that it counsels in favor of a remand. There would of course be no reason to remand if Odum is correct in arguing that the circumstances here were insufficient as a matter of law to establish a reasonable suspicion of criminal activity. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980) (facts known to law enforcement agent were insufficient to establish reasonable suspicion as a matter of law). Excluding later-learned information, the agents knew by the time of the seizure that Odum: (1) had paid cash for a one-way ticket immediately prior to the departure of a flight from Houston, which is considered a source city for narcotics; (2) had cheeked a yellow, hard-sided suitcase after asking the ticket agent for cellophane tape and taping the locks on the suitcase; (3) had scanned the concourse upon deplaning in Chicago, looking back over his shoulder three separate times; (4) had been unable to produce personal identification to confirm that he was Brent Owens, the name that appeared on his airline ticket; (5) had himself packed part of the yellow suitcase, which admittedly belonged to him, while his sister had packed the other part; and (6) had initially appeared" }, { "docid": "20030407", "title": "", "text": "had been or was engaged in narcotics trafficking. Cf. Royer, 460 U.S. at 502, 103 S.Ct. at 1326; Sterling, 909 F.2d at 1084; United States v. Sullivan, 903 F.2d 1093, 1097 (7th Cir.1990); United States v. Skidmore, 894 F.2d 925, 928 (7th Cir.1990); United States v. Teslim, 869 F.2d 316, 822 (7th Cir.1989). Our conclusion that the facts known to the agents were not insufficient as a matter of law should not be read to limit the district court’s discretion on remand. C. Odum finally contends that his motion to suppress should not have been denied without an evidentiary hearing. He argues first that a hearing was necessary to enable him to establish that he had been targeted by the agents for an investigative stop even before they arrived at Midway. He also maintains that a hearing was necessary to determine how much time elapsed after the agents seized the yellow suitcase and before they subjected it to a sniff search. Although the district court is free to conduct an evi-dentiary hearing on remand, we cannot say that the court would clearly err in resolving Odum’s motion without such a hearing. See Rodriguez, 69 F.3d at 140-42. The agents came to Midway with the obvious intention of investigating the information imparted to them by Officer Maxwell in Houston, and any proof Odum could muster to support his “targeting” theory would not require suppression of the cocaine so long as the agents’ reasonable suspicions about Odum were based on specific and articulable facts. Cf. Johnson, 910 F.2d at 1509 (reliance on drug courier profile to single out suspect for questioning was not improper); see also Rodriguez, 69 F.3d at 142. The district court also was not required to conduct an evidentiary hearing to determine the length of time Odum’s suitcase was detained before it was submitted to a sniff search. Although it is clear that the duration of an investigatory stop may abridge constitutional standards even where there is reasonable suspicion to support it (see United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983);" }, { "docid": "20030409", "title": "", "text": "Sterling, 909 F.2d at 1078), Odum did not argue below that the agents had not been diligent in submitting his suitcase to a canine sniff. Because he failed to raise the issue at all, his motion did not demonstrate a material factual dispute that required a hearing for resolution. See Rodriguez, 69 F.3d at 141. As a result, the district court did not clearly err in resolving his motion without a hearing. III. Because the district court relied on improper facts in concluding that law enforcement agents had sufficient information to produce a reasonable suspicion that Odum had engaged or was engaging in criminal activity, we remand to enable the district court to reconsider that question without reference to the improper facts. REMANDED. . Agent Malloy testified at the detention hearing that he and Gainer had asked at this point whether \"Brent Owens” was the subject's real name. Malloy testified that Odum admitted this was not his name and told the agents that his real name was Brandon Owens. (Dec. 7, 1993 Tr. at 9, 14.) Gainer’s complaint for a search warrant did not mention such an exchange, however, and the district court did not rely on Mal-loy’s testimony on this point. . Malloy testified that Odum did consent to a search of the black shoulder bag and that he in fact searched the shoulder bag once they arrived at the agents’ office. The search did not reveal any narcotics. (Dec. 7, 1993 Tr. at 13, 15.) . See McCarthur, 6 F.3d at 1276 (consensual encounter developed into investigatory stop when police officer said that luggage would be detained for canine sniff); Sterling, 909 F.2d at 1083 (same); cf. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (Fourth Amendment seizure occurred when suspect was told that his luggage would be taken to a federal judge so that the agents could secure a search warrant). . The government emphasizes one additional fact that apparently raised the agents' suspicions, although the district court never mentioned this fact in its opinion. (See Govt.Br. at 7" }, { "docid": "20030393", "title": "", "text": "questions and learned Odum’s address and various telephone numbers. They also learned that their suspect’s real name was Brandon Odum rather than Brent Owens. When asked about the name on his airline ticket, Odum told the agents that he had not purchased that ticket. When asked who did, Odum gave no response. The agents then verified Odum’s address with his grandmother and prepared a receipt for the yellow suitcase. Before Odum left, the agents asked whether he was carrying a large amount of money. Odum first said “not much,” then admitted to having “about $1,500.” He then produced two bundles of cash that contained $1,600. The agents returned the cash after counting it, and Odum left the office. A canine search of Odum’s suitcase produced a positive sniff for narcotics. The agents procured a search warrant and discovered approximately 5.8 kilograms of a substance containing cocaine. Odum was arrested and eventually indicted on one count of possessing with the intent to distribute cocaine. Odum moved to suppress the cocaine as having been procured in violation of the Fourth Amendment. He also requested an evidentiary hearing. The government initially submitted only a brief response to Odum’s motion, but the district court struck that response and ordered the government to submit a more complete response, which it did. The district court subsequently denied Odum’s motion without an evidentiary hearing. The court determined that Odum had not been “seized” for purposes of the Fourth Amendment when the agents initially stopped him for questioning near Midway’s baggage claim area. The court found that the questioning there was not coercive, that Odum had chosen to cooperate by answering the agents’ questions, and that he understood that he was free to refuse to answer and to leave the encounter. The court therefore found that neither probable cause nor reasonable suspicion was necessary to support this consensual interview. That conclusion has not been challenged in this appeal. The court also found, however, that the consensual interview developed into an investigatory stop, and hence a “seizure” under the Fourth Amendment, once the agents declared that they would detain" }, { "docid": "9344137", "title": "", "text": "door, offered to open the door for him, and seated themselves at opposite ends of the office. Agent Carter’s explanation to Scheets of the circumstances prompting them to approach him and his request that Scheets remain in the security office did nothing to vitiate the consensual nature of this initial encounter. Law enforcement officers do not violate the Fourth Amendment by approaching an individual in a public place and asking the individual if he is willing to cooperate with an ongoing eiiminal investigation. See Florida v. Boyer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). And, that is exactly what happened during Scheets’s initial encounter with Agent Carter and Hamlin in this case. Although the initial encounter between Scheets and Agent Carter and Hamlin was consensual, such a stop can develop into an investigatory stop depending upon the conduct of the investigating officers. See Odum, 7 encounter between ! Carter ripened into a at the moment that Scheets he was not fr rvPPi/•»/» •iwiT/'-ifi officers. See Odum, 72 F.3d at 1283. The encounter between Scheets and Agent Carter ripened into an investigatory stop at the moment that Agent Carter told Scheets he was not free to leave the security office. This investigatory stop continued upon the arrival of Agent Brown. Since the Supreme Court’s decision in Terry, it has been established that a law enforcement officer may conduct a brief, non-intrusive detention of a person if the officer has specific and articulable facts sufficient to give rise to a reasonable suspicion that the person has committed or is committing a crime. See Johnson, 910 F.2d at 1508; see also United States v. Boden, 854 F.2d 983, 992 (7th Cir.1988) (providing that detentions under Terry are lawful if the law enforcement officer has a reasonable suspicion that the person “has been, is, or is about to be engaged in criminal activity”). In determining whether an investigatory stop was supported by reasonable suspicion, “we consider the ‘totality of the circumstances’ as they were presented to the officer at the time of the encounter.” McCarthur, 6 F.3d at" }, { "docid": "20030408", "title": "", "text": "cannot say that the court would clearly err in resolving Odum’s motion without such a hearing. See Rodriguez, 69 F.3d at 140-42. The agents came to Midway with the obvious intention of investigating the information imparted to them by Officer Maxwell in Houston, and any proof Odum could muster to support his “targeting” theory would not require suppression of the cocaine so long as the agents’ reasonable suspicions about Odum were based on specific and articulable facts. Cf. Johnson, 910 F.2d at 1509 (reliance on drug courier profile to single out suspect for questioning was not improper); see also Rodriguez, 69 F.3d at 142. The district court also was not required to conduct an evidentiary hearing to determine the length of time Odum’s suitcase was detained before it was submitted to a sniff search. Although it is clear that the duration of an investigatory stop may abridge constitutional standards even where there is reasonable suspicion to support it (see United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); Sterling, 909 F.2d at 1078), Odum did not argue below that the agents had not been diligent in submitting his suitcase to a canine sniff. Because he failed to raise the issue at all, his motion did not demonstrate a material factual dispute that required a hearing for resolution. See Rodriguez, 69 F.3d at 141. As a result, the district court did not clearly err in resolving his motion without a hearing. III. Because the district court relied on improper facts in concluding that law enforcement agents had sufficient information to produce a reasonable suspicion that Odum had engaged or was engaging in criminal activity, we remand to enable the district court to reconsider that question without reference to the improper facts. REMANDED. . Agent Malloy testified at the detention hearing that he and Gainer had asked at this point whether \"Brent Owens” was the subject's real name. Malloy testified that Odum admitted this was not his name and told the agents that his real name was Brandon Owens. (Dec. 7, 1993 Tr. at 9," }, { "docid": "20030406", "title": "", "text": "suitcase, to conduct countersurveillance in walking through an airport concourse, and to travel without any personal identification. See United States v. Foster, 939 F.2d 445, 449-50 (7th Cir.1991) (listing travel habits of drug couriers); see also McCarthur, 6 F.3d at 1278 (train ticket had been purchased with cash and suspect claimed to have no personal identification); Sterling, 909 F.2d at 1084 (suspect conducted countersurveillance after deplaning and produced no identification). The fact, moreover, that Odum initially appeared calm but became visibly nervous when told that the agents were conducting a narcotics investigation is relevant to the reasonable suspicion inquiry. See McCarthur, 6 F.3d at 1278; United States v. Adebayo, 985 F.2d 1333, 1340 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993); Withers, 972 F.2d at 843; Johnson, 910 F.2d at 1510; Edwards, 898 F.2d at 1277. We thus cannot say that the facts known to the agents at the time of the seizure were insufficient as a matter of law to give rise to a reasonable suspicion that Odum had been or was engaged in narcotics trafficking. Cf. Royer, 460 U.S. at 502, 103 S.Ct. at 1326; Sterling, 909 F.2d at 1084; United States v. Sullivan, 903 F.2d 1093, 1097 (7th Cir.1990); United States v. Skidmore, 894 F.2d 925, 928 (7th Cir.1990); United States v. Teslim, 869 F.2d 316, 822 (7th Cir.1989). Our conclusion that the facts known to the agents were not insufficient as a matter of law should not be read to limit the district court’s discretion on remand. C. Odum finally contends that his motion to suppress should not have been denied without an evidentiary hearing. He argues first that a hearing was necessary to enable him to establish that he had been targeted by the agents for an investigative stop even before they arrived at Midway. He also maintains that a hearing was necessary to determine how much time elapsed after the agents seized the yellow suitcase and before they subjected it to a sniff search. Although the district court is free to conduct an evi-dentiary hearing on remand, we" }, { "docid": "20030392", "title": "", "text": "to answer the agents’ questions, but as those questions became more personal, he became hesitant and nervous, and he wished to leave the encounter. Gainer then asked Odum for permission to search the yellow suitcase. Odum inquired as to what would occur if he refused, and Gainer explained that the suitcase would be detained for a scent search by a trained narcotics detection dog. The agent told Odum that if the search resulted in a positive scent for narcotics, he would apply for a search warrant that would enable him to open the suitcase. If the scent search was negative, however, the suitcase would be mailed to Odum at any address he designated. Thus aware of the implications, Odum refused to consent to a search of the yellow suitcase. Gainer then asked Odum to accompany the agents to their office at the airport so that a receipt for the suitcase could be prepared and Odum’s identification verified. Odum agreed and carried the suitcase to the agents’ office. Once in the office, the agents posed additional questions and learned Odum’s address and various telephone numbers. They also learned that their suspect’s real name was Brandon Odum rather than Brent Owens. When asked about the name on his airline ticket, Odum told the agents that he had not purchased that ticket. When asked who did, Odum gave no response. The agents then verified Odum’s address with his grandmother and prepared a receipt for the yellow suitcase. Before Odum left, the agents asked whether he was carrying a large amount of money. Odum first said “not much,” then admitted to having “about $1,500.” He then produced two bundles of cash that contained $1,600. The agents returned the cash after counting it, and Odum left the office. A canine search of Odum’s suitcase produced a positive sniff for narcotics. The agents procured a search warrant and discovered approximately 5.8 kilograms of a substance containing cocaine. Odum was arrested and eventually indicted on one count of possessing with the intent to distribute cocaine. Odum moved to suppress the cocaine as having been procured in violation" }, { "docid": "20030394", "title": "", "text": "of the Fourth Amendment. He also requested an evidentiary hearing. The government initially submitted only a brief response to Odum’s motion, but the district court struck that response and ordered the government to submit a more complete response, which it did. The district court subsequently denied Odum’s motion without an evidentiary hearing. The court determined that Odum had not been “seized” for purposes of the Fourth Amendment when the agents initially stopped him for questioning near Midway’s baggage claim area. The court found that the questioning there was not coercive, that Odum had chosen to cooperate by answering the agents’ questions, and that he understood that he was free to refuse to answer and to leave the encounter. The court therefore found that neither probable cause nor reasonable suspicion was necessary to support this consensual interview. That conclusion has not been challenged in this appeal. The court also found, however, that the consensual interview developed into an investigatory stop, and hence a “seizure” under the Fourth Amendment, once the agents declared that they would detain Odum’s suit-ease to have it sniffed by a narcotics detection dog. Yet the court concluded that the agents by this time were aware of sufficient facts to create a reasonable suspicion that Odum was involved in narcotics trafficking. The court pointed to the agents’ knowledge: (1) that Odum had paid cash for a one-way ticket from Houston, a source city for narcotics, immediately before the flight’s departure; (2) that upon arriving in Chicago, Odum had scanned the concourse as he walked and had looked over his shoulder three times on the way to the baggage claim area; (3) that Odum had been unable to produce any personal identification; (4) that he had become shaky and nervous upon learning the purpose of the agents’ questions; and (5) that Odum had been traveling under a different name, which he justified with the explanation that he had not purchased his own ticket without responding to the question of who had purchased the ticket for him. The court found that although any one of these factors may arguably be" }, { "docid": "9344138", "title": "", "text": "1283. The encounter between Scheets and Agent Carter ripened into an investigatory stop at the moment that Agent Carter told Scheets he was not free to leave the security office. This investigatory stop continued upon the arrival of Agent Brown. Since the Supreme Court’s decision in Terry, it has been established that a law enforcement officer may conduct a brief, non-intrusive detention of a person if the officer has specific and articulable facts sufficient to give rise to a reasonable suspicion that the person has committed or is committing a crime. See Johnson, 910 F.2d at 1508; see also United States v. Boden, 854 F.2d 983, 992 (7th Cir.1988) (providing that detentions under Terry are lawful if the law enforcement officer has a reasonable suspicion that the person “has been, is, or is about to be engaged in criminal activity”). In determining whether an investigatory stop was supported by reasonable suspicion, “we consider the ‘totality of the circumstances’ as they were presented to the officer at the time of the encounter.” McCarthur, 6 F.3d at 1277 (citing United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). The Supreme Court has emphasized that “the totality of the circumstances—the whole picture— must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). We have also noted that the “totality of the circumstances” encompasses both “the experience of the law enforcement agent and the behavior and characteristics of the suspect.” Odum, 72 F.3d at 1284. Our review of the totality of the circumstances in this case leads us to the conclusion that Agent Carter’s initial decision to detain Scheets upon his attempt to leave the Casino’s security office was supported by a reasonable suspicion that Scheets had robbed a bank earlier that day. As Agent Carter testified before the district court, he compared Scheets to the photograph of the bank robbery suspect and noticed" } ]

[ { "docid": "12373901", "title": "", "text": "felons. Defendant Curtis Brewer was sentenced to two and six years of imprisonment, to be served consecutively. Defendant Ferguson was sentenced to be incarcerated for 15 and 10 years to be served concurrently and James Brewer was sentenced to imprisonment for 20 and 10 years to be served concurrently, pursuant to the ACCA. All defendants appealed to this court and their appeals have been consolidated for disposition. This appellate review of the ACCA presents an issue of first impression in this circuit, and challenges this court to determine if the government is specifically required to charge in the indictment and prove at trial a defendant’s prior convictions pursuant to the mandate of the ACCA. Under that section, a felon who possesses firearms may be sentenced to a maximum of two years unless he has previously been convicted for committing three prior felonies. Three-time recidivists are subject to imprisonment for a period of not less than fifteen years without eligibility for parole. In the instant ease, the prior convictions of the vulnerable defendants were not specifically charged or proved during trial. However, on July 4, 1986, prior to the commencement of their trial on the charges of the indictment, they were each formally noticed that the government would seek enhanced sentencing pursuant to 18 U.S.C. App. § 1202 (ACCA). The notice which preceded the September 9 trial by more than a month listed in detail the previous convictions upon which the ACCA charge was anchored. Defendants were convicted subsequent to a jury trial. At their respective presentencing hearings neither the defendant Ferguson nor defendant Brewer challenged the government’s proof and conceded their respective three prior felony convictions which mandated an enhanced sentence. Thus, any demurrer to the enhanced sentences in the instant case could not be predicated upon insufficient or vague notice-related due process concerns. Appellants had received proper notice and were not prejudiced by the government’s use of the enhanced sentencing procedure. Accordingly, because this court believes that Congress did not intend the ACCA to create a separate offense mandating the government to specifically plead in its indictment and prove" } ]

[ { "docid": "13229996", "title": "", "text": "was there, and submitted to his arrest, but requested that he be permitted to change into clean clothes before departing. Blair acceded, and accompanied Taylor into the house to keep him under supervision. While inside, he noted on the wall of the bedroom in which Taylor was changing a gunrack holding a shotgun and several rifles. He reported this discovery to his supervisor, who in turn informed Special Agent Bart McEntire of the Federal Bureau of Alcohol, Tobacco and Firearms. McEntire obtained a search warrant for 341' Margin Street. On March 4, 1988 McEntire, with another federal agent and several state agents including Blair, served the warrant. Taylor’s “girlfriend,” Julie Douglas, admitted them, and Taylor frankly pointed out the gunrack. Taylor refused, however, to state that the guns were his. The search of the house produced a number of firearms and a receipt signed by Joal Perry stating that he had sold a gun to Taylor. It also produced a good deal of circumstantial evidence that was introduced at trial to show that the 341 Margin Street house was Taylor’s home and that the room with the gunrack was his bedroom. The federal officers arrested Taylor. He was detained as a danger to the community. He was first indicted on one count only: possessing firearms as a convicted felon, in violation of § 922(g). This indictment, issued on March 8, 1988, listed a number of firearms and charged that Taylor owned them on March 4, 1988. R. 1. On April 18, 1988 the Grand Jury issued the first of two superseding indictments. R. 13. This indictment repeated the count stated in the original indictment but added allegations that Taylor had been convicted of the six Tennessee felonies mentioned above. The new indictment additionally cited 18 U.S.C. § 924(e)(1), giving Taylor notice that the Government intended to seek the ACCA’s mandatory fifteen-year sentence. In May of 1988 the charge was tried to a jury. At that time the rule in the Sixth Circuit was that the predicate prior felonies on which § 924(e) sentencing depends must be proven to the jury." }, { "docid": "5805812", "title": "", "text": "Circuit Courts of Appeals, this is insufficient to support a conviction under the Armed Career Criminal Act. The preceding discussion, however, does not conclude the case before us. In United States v. Brewer, 853 F.2d 1319, 1322 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), — U.S. -, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989), we concluded that the Armed Career Criminal Act “did not create a separate indictable offense but constitutes a sentencing enhancement provision that need not be independently pleaded or proved at trial.” Thus, the government need not “place evidence of a defendant’s three prior felony convictions before the jury” in order for the sentencing judge to impose an enhanced sentence on a recidivist offender. 853 F.2d at 1324 (quoting United States v. Jackson, 824 F.2d 21, 25 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988)). The government maintains that in addition to the convictions listed in the indictment, Pedigo also was convicted on two felony counts in Monroe County Circuit Court, Kentucky. Thus, the government concludes that the Monroe County convictions constitute the third separate criminal episode as required by the Act, thereby justifying the enhanced sentence which was imposed by the trial court. Brief of Appellee at 7. Evidence of Pedigo’s Monroe County Circuit Court convictions was admitted for impeachment purposes at trial. Tr. at 106. Brewer, 853 F.2d at 1321, indicates that this evidence may be considered for enhancement purposes as a third separate episode or group of convictions for purposes of the Armed Career Criminal Act. The problem in this case is whether, in the absence of any reference to Monroe County convictions in the indictment, Pedigo had adequate notice that these convictions would be utilized to enhance his sentence if convicted on the underlying offense of possession of a firearm. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); United States v. Beeler, 587 F.2d 340 (6th Cir.1978), appeal after remand, 648 F.2d 1103 (6th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct." }, { "docid": "22589520", "title": "", "text": "RYAN, Circuit Judge. In this consolidated criminal case, the defendants, Leonard Lloyd, Shawn Huffman, Darryl Little, and Mario Taylor, appeal their conviction by a jury on multiple charges arising from a large drug distribution conspiracy. The defendants, separately and in various combinations, raise a number of challenges to their judgments of conviction and sentences. Finding the defendants’ arguments with regard to their convictions to be without merit, we affirm each of their judgments for reasons we shall fully develop. We also affirm the sentences of defendants Lloyd, Huffman, and Taylor. Because Little’s sentence, however, was grounded in part on a mistaken conclusion of law, we vacate and remand for resentencing. I. A. The Indictment The defendants, along with thirteen others, were charged in a February 1991 indictment with a variety of drug and firearm crimes. The case originally proceeded to trial against these four defendants in December 1991, and the outcome was a jury deadlock on all but five counts. Taylor was acquitted on four counts, including the overarching conspiracy count and two counts of aiding and abetting the distribution of cocaine, and Lloyd was acquitted on one count of possession of cocaine with intent to deliver. The government again prosecuted the same four defendants in April 1992, and that is the trial from which this appeal is taken. The following summaries represent the counts with which the defendants were charged in the Second Amended Superseding Indictment (Redacted) submitted to the jury. Little was charged with six counts: conspiracy to possess cocaine and crack with intent to distribute, and to distribute cocaine and crack, in violation of 21 U.S.C. §§ 846 & 841 (count 1); possession of cocaine within 1000 feet of a school with intent to distribute, and aiding and abetting thereof, in violation of 21 U.S.C. §§ 841 & 845a(a), 18 U.S.C. § 2 (count 2, relating to events of November 23, 1988); use and carrying of firearms during drug trafficking, and aiding and abetting thereof, in violation of 18 U.S.C. §§ 924(c)(1) & 2 (counts 3 and 6, relating to events of November 23, 1988, and June" }, { "docid": "21564139", "title": "", "text": "denied having been convicted of a felony. 18 U.S.C. § 922(a)(6). In that count it was alleged and was proved at trial that Ford had been convicted of three felonies: holding a correctional officer hostage, assault and battery, and receiving stolen property. As has also been stated, in Count III it was charged that Ford possessed a firearm, having been convicted of a felony and having been previously convicted of at least three violent felonies. 18 U.S.C. §§ 922(g)(1) and 924(a)(1) and (e)(1). It was further charged in Count III and proved at trial that Ford had been convicted, in addition to the two violent felonies also alleged in Count I, of three additional violent felonies. Ford’s trial position was that the prosecution should be allowed to prove only one felony to support the conviction under both Count I and Count III and that the requirement of proof of three violent felonies under Count III was only to enhance the sentence and was not an element of the crime. At the time of this trial, this court had recently decided United States v. Brewer, 841 F.2d 667 (6th Cir.1988) (Brewer I), which involved a conviction under 18 U.S.C. App. § 1202, part of an earlier version of this Armed Career Criminal Act. In Brewer I, the indictment had not charged three previous violent crimes and the government had proved such crimes after conviction to enhance the sentence. On appeal, it was contended by the defendant that such violent crimes were predicate crimes to conviction and that therefore they must be charged in the indictment and proved at trial. This court agreed and in Brewer I reversed the conviction. The district judge in the instant case applied the holding in Brewer I and treated the requirement of conviction of three violent crimes as being an element of the crime to be proved at trial. On rehearing, however, this court in Brewer II, United States v. Brewer, 853 F.2d 1319 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), determined that the three prior violent crimes were" }, { "docid": "23574078", "title": "", "text": "found Appellant “Guilty of the crime of Burglary, in violation of Penal Code section 459, as charged in the Infor-mation_” (emphasis added). Our review of the information and verdict in Appellant’s burglary conviction indicates that Appellant’s conviction was properly considered under § 924(e). We do not read Taylor to require the^ government to provide jury instructions or a transcript of the instructions, in a case where the criminal statute, the indictment or information, and the verdict clearly show that the prior conviction charged the defendant with a “generic” burglary. See Sweeten, 933 F.2d at 769-70. With respect to Appellant’s conviction for misdemeanor battery and felony grand theft, Appellant contends that grand theft is not a violent felony when it occurs in connection with a misdemeanor battery. We need not consider this argument for, even if the district court’s consideration of the grand theft and battery conviction was improper, any error was harmless. Because we hold elsewhere in this section that the other convictions can be used for enhancement, the district court did not need to consider the grand theft charge to reach the requisite three prior violent felonies. Appellant next contends that the district court erred in Considering three prior convictions not listed in the indictment, and for which the government did not file written notice of intention to use prior to trial. ' It is not necessary for the government to list the prior convictions in the indictment. See United States v. Dunn, 946 F.2d 615, 619 (9th Cir.1991). We similarly find no support for the contention that the predicate felonies must' be alleged in some formal notice pleading. Appellant was well aware that the government intended to seek a sentence enhancement under § 924(e). See United States v. Gillies, 851 F.2d 492, 496 (1st Cir.1988) (reference to “three prior felonies” in indictment provides sufficient notice to defendant that, if found guilty, his sentence will be enhanced under § 924(e)), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988). Further, the government’s response to Appellant’s sentencing objections and memorandum clearly informed Appellant of the prior convictions" }, { "docid": "21564140", "title": "", "text": "this court had recently decided United States v. Brewer, 841 F.2d 667 (6th Cir.1988) (Brewer I), which involved a conviction under 18 U.S.C. App. § 1202, part of an earlier version of this Armed Career Criminal Act. In Brewer I, the indictment had not charged three previous violent crimes and the government had proved such crimes after conviction to enhance the sentence. On appeal, it was contended by the defendant that such violent crimes were predicate crimes to conviction and that therefore they must be charged in the indictment and proved at trial. This court agreed and in Brewer I reversed the conviction. The district judge in the instant case applied the holding in Brewer I and treated the requirement of conviction of three violent crimes as being an element of the crime to be proved at trial. On rehearing, however, this court in Brewer II, United States v. Brewer, 853 F.2d 1319 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), determined that the three prior violent crimes were not predicate crimes to conviction and were only a basis for enhancement of punishment after conviction. This court, therefore, in Brewer II, affirmed the conviction. In reaching its interpretation of the statute in Brewer II, this court said: This court is also concerned that the interpretation of the ACCA [Armed Career Criminal Act] urged by appellants and the dissent would “require the government to place evidence of a defendant’s three prior felony convictions before the jury in any proceeding under the ACCA. The inherently prejudicial nature of this kind of evidence is well-known.” [U.S. v.] Jackson, 824 F.2d [21] at 25. [D.C.Cir.1987] “[A]bsent any convincing evidence, in either the text, structure, or legislative history of the ACCA, that Congress intended to deviate from this general policy,” this court should not require that highly prejudicial proof of pri- or convictions be required at trial. Id. 853 F.2d at 1324-25. Ford argues, based on this language in Brewer II, that it was reversible error visa-vis Count III to admit into evidence the proof of the five violent" }, { "docid": "18099569", "title": "", "text": "the ACCA, however, a defendant convicted under § 922(g) who “has three previous convictions ... for a violent felony or a serious drug offense, or both,” must be sentenced to “not less than 15 years” of imprisonment. Id. § 924(e)(1). A “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). B. Constitutional Challenges McMurray first argues that violating the ACCA is “a separate criminal offense,” and, therefore, pursuant to the Due Process Clause, the predicate felony convictions must be included in the indictment and proven beyond a reasonable doubt. Appellant Br. at 11. He argues that his “conviction for being an armed career criminal felon should be vacated.” Id. We review de novo challenges to the sufficiency of an indictment. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). We have rejected the argument that the ACCA sentencing provision is a separate offense and that the government must plead in the indictment and prove beyond a reasonable doubt the predicate felonies. United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991); United States v. Brewer, 858 F.2d 1319, 1322 (6th Cir.1988) (on reh’g) (analyzing antecedent statute to the ACCA), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989). That the ACCA is a sentence enhancement rather than a separate offense is well established. See, e.g., Custis v. United States, 511 U.S. 485, 490, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (“The ACCA provides an enhanced sentence----”); Taylor v. United States, 495 U.S. 575, 577, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“[The ACCA] provides a sentence enhancement....”). Thus, McMurray’s due-process challenge to the ACCA may be more appropriately construed" }, { "docid": "13230035", "title": "", "text": "II, Taylor argues, the trial court accomplished an impermissible amendment of his indictment by remov ing consideration of his prior convictions from the province of the jury. We are not at all sure what Taylor argues here. His entire argument on appeal is the citation of our decision in United States v. Zelinka, 862 F.2d 92 (6th Cir.1988) — a case that delineates the difference between an amendment of an indictment and a mere variance in proof and that nowhere alludes to the problems raised by an indictment issued under the rule of a case that is reversed before trial. Taylor, through his attorney, adduced no argument at pre-trial argument before the trial judge beyond an assertion that he wished to proceed under Brewer I. Tr. 11-40-41. The record discloses nothing more than Taylor’s proposed jury verdict form, filed in open court without any supporting documents that would indicate why Taylor would have us hold that Brewer II should not be applied in this case. R. 47. In the charging conference Taylor’s attorney argued only that, because the indictment charged Taylor with a number of violent felonies, they must be proven to and found by the jury. Tr. IV-480-82. The District Court ruled that whether Taylor’s prior convictions were for violent felonies within the meaning of the ACCA was a question of law for it to decide. Tr. IY-482. We decline the invitation Taylor has given us by this inadequate briefing to wrack our imaginations for every argument that he could have raised to support the assertion that the trial court improperly amended his indictment. The Zelinka case — his only authority — is not controlling, and he points to nothing to convince us that an injustice was done here. On the facts of this case only, therefore, we reject the argument that the District Court erred by failing to commit to a jury decision the question whether Taylor’s prior convictions were valid for purposes of applying § 924(e). C. Sentencing Guidelines. Taylor withdrew at oral argument his claim that the Sentencing Guidelines are unconstitutional. Taylor does argue, however, that" }, { "docid": "12083392", "title": "", "text": "necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof. McMillan noted specifically that traditional sentencing factors need not be pleaded and proved at trial. The rationale of McMillan suggests that sentence enhancers like § 924(e)(1) do not run afoul of the Due Process Clause. Conclusion Because § 924(e)(1) does not create a separate offense but is merely a sentence enhancement provision, the previous felony convictions necessary for sentencing under § 924(e)(1) are not an element of the offense for which appellant was tried. Therefore, prior convictions need not be set forth in the indictment and proved beyond a reasonable doubt at the trial in chief, but are relevant only for recidivist sentencing. Accordingly, the judgment of the District Court is AFFIRMED. . §§ 922(g)(1) and 924. . This court need not reach the issue whether such notice is constitutionally required. However, it should be noted that defendant received proper notice and was not prejudiced by the government’s use of the enhanced sentencing procedure. United States v. Brewer, 853 F.2d 1319, 1321 (6th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989). See also United States v. Hawkins, 811 F.2d 210, 220 (3rd Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). . That portion of the indictment read as follows: COUNT TWO: (18 U.S.C. § 922(g)(1); 18 U.S.C. § 924) The Grand Jury charges: On or about February 25, 1988, within the Northern District of Alabama, the defendant, having been convicted on October 4, 1979, in the Circuit Court of Calhoun County, Alabama, for possession of a pistol after conviction of a crime of violence, to-wit: robbery, a crime punishable by imprisonment for a term exceeding one year, did knowingly possess firearms, that is, a Winchester .22 caliber rifle and a Marlin .30-30 caliber rifle, which had been transported in interstate commerce, in violation of Title 18, United States Code § 922(g)(1); Title 18, United States Code, § 924. . 844 F.2d 415 (7th Cir.), cert. denied, - U.S." }, { "docid": "13230028", "title": "", "text": "L.Ed.2d 799 (1963). Tr. V-614. It is doubtful that Lewis applies in the quite different context of a sentencing procedure: we note that at least two courts have held that it does not. United States v. Clawson, 881 F.2d 909, 914 (9th Cir.1987), cert. denied, — U.S.-, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988); United States v. Gantt, 659 F.Supp. 73, 76-79 (W.D.Pa.1987); see also 18 U.S.C. § 921(a)(20) (requiring that what constitutes a “conviction” under the ACCA be “determined in accordance with the law of the jurisdiction in which the proceedings were held”). Any error on this point would not require us to disturb the District Court’s ruling, however, as the District Judge did consider the validity of the challenged records, evaluating the documentary and testimonial evidence before him in light of Tennessee law, and correctly concluded that they are not so flawed as to be insufficient to prove a conviction for § 924(e) sentence-enhancement purposes. As the District Court observed, Taylor’s conviction for “felonious assault” is supported in the record by the indictment in the same case. In that document, Taylor was explicitly charged with “unlawfully, feloniously, willfully, knowingly, and recklessly causing] serious bodily injury to Eugene Harding, by shooting him with a pistol, under circumstances manifesting extreme indifference to the value of human life.” The relevant state statute is clearly TenmCode Ann.' § 39-2-101 (Aggravated Assault), a recognized felony under Tennessee law. We agree with the District Court that the use of the term “felonious assault” on the record of conviction does not so undermine the documentary record as to exclude this conviction from the scope of ACCA sentencing. Reviewing our holdings to this point, we conclude that the District Court properly counted two of Taylor’s burglary convictions and his conviction for felonious assault in imposing on him, on each count, the mandatory minimum sentence declared in § 924(e). These three convictions are a sufficient predicate for applying the § 924(e) sentence to one of the two counts of firearms possession. Furthermore, as we noted above, Taylor has waived any argument that these three convictions cannot be" }, { "docid": "21573680", "title": "", "text": "offense and admitting into evidence before the jury Quintero’s three pri- or felony convictions. In viewing the entire record as a whole, however, we are confident that this error had little or no effect on the jury’s deliberations. We find no error in the trial court’s refusal to sever the counts of the indictment, its denial of Quintero’s motion in limine, or its application of § 924(e)(1) to enhance Quintero's sentence. We therefore affirm Quintero’s convictions. AFFIRMED. . The provisions contained in § 924(e)(1) were previously codified at 18 U.S.C.App. § 1202(a), and prohibited previously convicted felons from receiving, possessing, or transporting in commerce, or affecting commerce, any firearm. Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, § 1202(a), 82 Stat. 197, 236 (1968). In 1984, Congress amended Section 1202(a), adding an increased penalty for felons with three previous convictions for robbery or burglary who subsequently possessed firearms. Armed Career Criminal Act of 1984, Pub.L. 98-473, § 1202(a), 98 Stat. 2185 (1985). In 1986, Congress repealed § 1202(a). The Armed Career Criminal Act was then amended and reco-dified at 18 U.S.C. § 924(e), as part of a general consolidation of the federal firearms laws. Firearms Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 456 (1986). . Other Circuits have disagreed, finding that § 1202(a) is a sentence enhancement provision rather than a separate offense. See United States v. Rumney, 867 F.2d 714 (1st Cir.1989); United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Blannon, 836 F.2d 843, 844-45 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Brewer, 853 F.2d 1319 (6th Cir.) (en banc) (overuling prior finding that § 1202(a) created a separate offense), cert. denied, — U.S. -, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988); United States v. Priovolos, 844 F.2d 415 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 574, 576-78 (8th Cir.) (en banc), cert. denied, —" }, { "docid": "13229997", "title": "", "text": "Margin Street house was Taylor’s home and that the room with the gunrack was his bedroom. The federal officers arrested Taylor. He was detained as a danger to the community. He was first indicted on one count only: possessing firearms as a convicted felon, in violation of § 922(g). This indictment, issued on March 8, 1988, listed a number of firearms and charged that Taylor owned them on March 4, 1988. R. 1. On April 18, 1988 the Grand Jury issued the first of two superseding indictments. R. 13. This indictment repeated the count stated in the original indictment but added allegations that Taylor had been convicted of the six Tennessee felonies mentioned above. The new indictment additionally cited 18 U.S.C. § 924(e)(1), giving Taylor notice that the Government intended to seek the ACCA’s mandatory fifteen-year sentence. In May of 1988 the charge was tried to a jury. At that time the rule in the Sixth Circuit was that the predicate prior felonies on which § 924(e) sentencing depends must be proven to the jury. United States v. Brewer, 841 F.2d 667 (6th Cir.1988) (Brewer I), rev’d, 853 F.2d 1319 (6th Cir.) (Brewer II), cert. denied, — U.S.-, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988) and 109 S.Ct. 1142 (1989) (two petitions). The trial was conducted in accordance with Brewer I, with Taylor’s prior criminal record being submitted to the jury. The jury was unable to reach a verdict, the District Judge declared a mistrial, and the case was set down for retrial. R. 32. On June 30, 1988, the Grand Jury issued a second superseding indictment. R. 37a. This document charges Taylor with two discrete acts of criminal possession of a firearm: the originally charged act of March 4, 1988 and a second act of possession, this time of a single weapon not included in the original count, occurring on or about January 1, 1987. Under each count the new indictment reiterated Taylor’s six Tennessee felony convictions. Taylor pleaded not guilty to both counts in the second superseding indictment and stood trial in August of 1988. Just a few" }, { "docid": "13229999", "title": "", "text": "days before trial, the Sixth Circuit reversed its decision in Brewer I, 841 F.2d 667, deciding in the same case that the three prior felonies upon which the enhanced sentence were sought should be proven to the bench at the sentencing stage. Brewer II, 853 F.2d 1319. Over Taylor’s objection, the District Judge removed from the jury consideration of the Government’s claim that Taylor had been convicted of three violent felonies before his acts of firearms possession. The jury returned verdicts of guilty on both counts. Relying on the enhanced penalty provision of § 924(e)(1), and finding that all six of Taylor’s prior felony convictions counted as predicate violent felonies under that section of the ACCA, the District Court sentenced Taylor to two fifteen-year sentences, to run concurrently. Taylor is currently serving these sentences. Taylor appeals both his conviction and his sentence on a number of grounds which we believe are most intelligibly organized into five sets of issues. These are: 1. Attacks on counting the burglary convictions under § 924(e). 2. Attacks on counting the felonious assault conviction under § 924(e). 3. Attacks on counting the accessory after the fact to armed robbery conviction under § 924(e). 4. Attacks affecting all of the prior convictions under § 924(e). 5. Attacks on various rulings at trial. We find below that the District Court improperly counted two of Taylor’s burglary convictions in applying § 924(e), but that the remaining two burglary convictions were properly considered by the court for sentence-enhancement purposes (Part I). We also find that Taylor’s felonious assault conviction was properly considered (Part II). We further find that the attacks affecting all the prior convictions are without merit (Part III). Thus, we hold that three of Taylor’s convictions were properly counted as violent felonies to satisfy the requirements of § 924(e) and that no other defect in his sentencing appears. Given these holdings, we conclude that we need not reach Taylor’s challenge to the consideration of his conviction for serving as an accessory after the fact to armed robbery. Taylor does not argue that the ACCA prohibits consideration of" }, { "docid": "4444251", "title": "", "text": "MEMORANDUM OPINION CHURCHILL, District Judge. In this criminal case, the Court previously entered a memorandum opinion accompanied by an opinion and order of detention detailing the various interpretations of the statutory “crime of violence” concept. Defendant MacNeal Johnson’s motion to dismiss the indictment in this case requires the Court to undertake yet another foray into the realm of statutory terminology. Specifically, the Court must ascertain what Congress intended when it spoke of a “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (originally codified at 18 U.S.C. App. § 1202). Because the Court recited the facts of this case in exhaustive detail in the prior memorandum opinion and order, only a brief synopsis of the controlling facts is necessary here. On October 19, 1988, the Grand Jury returned an indictment charging Defendant Johnson as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Additionally, the indictment charged a “violation” of 18 U.S.C. § 924(e), the Armed Career Criminal Act charge that carries with it a mandatory 15-year minimum sentence. See 18 U.S.C. § 924(e). In his motion to dismiss the indictment, Defendant Johnson makes a two-pronged facial attack upon the indictment. Defendant Johnson first contends that controlling Sixth Circuit precedent obviates the need to include an Armed Career Criminal Act (“ACCA”) charge in an indictment. Thus, argues Defendant Johnson, the indictment in the case at bar is technically improper because it incorporates an ACCA charge. Also, Defendant Johnson insists that the ACCA is of no moment in his case because he simply has not been previously convicted of three “violent felonies” or “serious drug offenses” necessary to trigger the ACCA. See 18 U.S.C. § 924(e). The Court will address each of these two arguments separately. I. Technical Impropriety of ACCA Charge in an Indictment Conceptualization of the ACCA as either a separate offense or merely a sentence enhancement device has proved troublesome for the various United States Circuit Courts of Appeals. This difficulty is strikingly apparent in the Sixth Circuit’s treatment of the ACCA. On February 26, 1988, a divided Sixth" }, { "docid": "13230034", "title": "", "text": "burden of proving that his convictions were in fact not constitutionally sound. Taylor failed to meet that burden, introducing only his own testimony — explicitly found by the District Court to be incredible. Tr. V-612. In light of the documentary proof and the prosecutor’s testimony, we conclude that Taylor’s rights under Boykin were not violated when the District Court considered his prior convictions for sentence-enhancement purposes. B. Brewer. Taylor argues that the validity of his prior convictions should have been considered an element of the crime for which he was indicted because the indictment on which he was tried issued while this Circuit’s case law required such treatment. Brewer I, 841 F.2d 667. Just a few days before his second trial, the Sixth Circuit reversed Brewer I, ruling in Brewer II, 853 F.2d 1319, that the ACCA announced not a new federal crime but a sentence enhancement, so that prior convictions were to be proven not to the jury at trial but to the bench at the sentencing phase. In applying the rule of Brewer II, Taylor argues, the trial court accomplished an impermissible amendment of his indictment by remov ing consideration of his prior convictions from the province of the jury. We are not at all sure what Taylor argues here. His entire argument on appeal is the citation of our decision in United States v. Zelinka, 862 F.2d 92 (6th Cir.1988) — a case that delineates the difference between an amendment of an indictment and a mere variance in proof and that nowhere alludes to the problems raised by an indictment issued under the rule of a case that is reversed before trial. Taylor, through his attorney, adduced no argument at pre-trial argument before the trial judge beyond an assertion that he wished to proceed under Brewer I. Tr. 11-40-41. The record discloses nothing more than Taylor’s proposed jury verdict form, filed in open court without any supporting documents that would indicate why Taylor would have us hold that Brewer II should not be applied in this case. R. 47. In the charging conference Taylor’s attorney argued only" }, { "docid": "13230025", "title": "", "text": "commission of the third crime.” United States v. Balascsak, 873 F.2d 673, 681 (3d Cir.1989) (en banc). Taylor has not raised this issue, however, and, even if he had, it appears that his convictions for burglary were obtained well before he was convicted of felonious assault. We are confronted with the relatively simple question whether a court applying § 924(e) can count as two predicate felony convictions two convictions which, as the record discloses, relate only to a single criminal act. The plain language of the statute we are applying bars such double-counting. In 1988 Congress amended § 924(e), specifying that the defendant must have three previous felony convictions for offenses “committed on occasions different from one another.” Congress further stated that this amendment was merely a “clarification” of existing law. Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7056, 102 Stat. 4181, 4402 (1988). Thus, under the statute today (and at the time Taylor was sentenced), he has (and had) a right to be free from double-counting of multiple convictions arising from a single episode of criminal conduct. We have no difficulty in determining that Taylor’s two burglaries, committed in different months and involving different structures, were “committed on occasions different from one another.” Id. We therefore hold that his four burglary convictions should have been counted under § 924 as two predicate convictions for sentence-enhancement purposes. II. SENTENCING: CHALLENGE TO CONVICTION FOR “FELONIOUS ASSAULT” Taylor raises as an assignment of error the District Court’s refusal to strike his conviction for “felonious assault” because of a claimed defect in the records of that conviction. Taylor claims that no crime denominated “felonious assault” appears in the Tennessee Criminal Code, so that his conviction for that crime was improperly obtained. Before addressing the merits of this claim, we pause for a moment to ascertain its exact posture. Some language in Taylor’s brief reflects his original effort, at his first trial, to establish that he was not a felon in possession of a firearm by attacking these conviction records. At Taylor’s retrial, however, Brewer II, 853 F.2d 1319, was applied and" }, { "docid": "9329144", "title": "", "text": "adjudicated in one proceeding. The issue in the case is whether these convictions, conceded to have involved separate episodes but adjudicated in one proceeding, are “three previous convictions” within the meaning of § 924(e)(1). The facts of the case were not in dispute. The defendant, out on parole from his prior felony convictions, engaged in a series of firearms purchases. He was indicted on four counts by a federal grand jury. He pled guilty to one count which charged him with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The other counts were dismissed. The District Court imposed an enhanced sentence on the basis of three prior felony convictions, all prosecuted in state court under one indictment in one proceeding. In this prior state court adjudication Hayes was convicted of five counts of kidnapping, ten counts of rape, and four counts of aggravated robbery. This criminal conduct occurred on four different dates and involved five victims. The Government and the defendant agreed that the convictions were based on separate criminal episodes. ♦ * * # * aje The Sixth Circuit has interpreted § 924(e)(1) to require that for prior convictions to be used to enhance a § 922(g)(1) sentence under § 924(e)(1), those convictions must be based on separate criminal episodes. See United States v. Pedigo, 879 F.2d 1815, 1317 (6th Cir.1989) (considering question whether previous felony convictions must arise out of different criminal episodes to support a § 924(e)(1) enhancement under predecessor statute which did not include the language “committed on occasions different from one another” and holding that “[mjultiple guilty verdicts must originate from multiple episodes that are distinct in time in order to constitute multiple convictions”). While the Sixth Circuit has not considered appeals that raised directly the separate adjudications issue, we have reached results consistent with the view that as long as the convictions clearly involved separate criminal episodes, the convictions need not have been separately adjudicated. See United States v. Taylor, 882 F.2d 1018 (6th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2592, 110 L.Ed.2d" }, { "docid": "13229998", "title": "", "text": "United States v. Brewer, 841 F.2d 667 (6th Cir.1988) (Brewer I), rev’d, 853 F.2d 1319 (6th Cir.) (Brewer II), cert. denied, — U.S.-, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988) and 109 S.Ct. 1142 (1989) (two petitions). The trial was conducted in accordance with Brewer I, with Taylor’s prior criminal record being submitted to the jury. The jury was unable to reach a verdict, the District Judge declared a mistrial, and the case was set down for retrial. R. 32. On June 30, 1988, the Grand Jury issued a second superseding indictment. R. 37a. This document charges Taylor with two discrete acts of criminal possession of a firearm: the originally charged act of March 4, 1988 and a second act of possession, this time of a single weapon not included in the original count, occurring on or about January 1, 1987. Under each count the new indictment reiterated Taylor’s six Tennessee felony convictions. Taylor pleaded not guilty to both counts in the second superseding indictment and stood trial in August of 1988. Just a few days before trial, the Sixth Circuit reversed its decision in Brewer I, 841 F.2d 667, deciding in the same case that the three prior felonies upon which the enhanced sentence were sought should be proven to the bench at the sentencing stage. Brewer II, 853 F.2d 1319. Over Taylor’s objection, the District Judge removed from the jury consideration of the Government’s claim that Taylor had been convicted of three violent felonies before his acts of firearms possession. The jury returned verdicts of guilty on both counts. Relying on the enhanced penalty provision of § 924(e)(1), and finding that all six of Taylor’s prior felony convictions counted as predicate violent felonies under that section of the ACCA, the District Court sentenced Taylor to two fifteen-year sentences, to run concurrently. Taylor is currently serving these sentences. Taylor appeals both his conviction and his sentence on a number of grounds which we believe are most intelligibly organized into five sets of issues. These are: 1. Attacks on counting the burglary convictions under § 924(e). 2. Attacks on counting" }, { "docid": "1807394", "title": "", "text": "HEANEY, Senior Circuit Judge. Harlin Jerome Traxel appeals from a sentence of fifteen years imprisonment following a plea of guilty to one count of an indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). We vacate Traxel’s sentence and remand to the district court for resentencing. BACKGROUND In December 1988, a federal grand jury indicted Traxel on two counts of firearms possession in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). As a basis for the charges of being a felon in possession of a firearm, the indictment listed four prior felony convictions: a federal bank robbery conviction in 1978; Minnesota convictions for burglary in 1969 and 1977; and a Minnesota conviction for aggravated assault in 1969. Traxel pleaded guilty to Count I of the indictment and the second count was dismissed. Prior to sentencing, Traxel filed a statement with respect to sentencing factors contending that he should not be subject to the enhanced penalty provision of 18 U.S.C. § 924(e)(1) based on his prior convictions. Section 924(e)(1) requires a mandatory minimum sentence of fifteen years for anyone violating section 922(g) who has three previous convictions for violent felonies. 18 U.S.C. § 924(e)(1) (1988). Section 921(a)(20), however, exempts from consideration under section 924(e)(1) any convictions for which a person has had civil rights restored. 18 U.S.C. § 921(a)(20) (1988). Traxel claimed that, because Minnesota law automatically restored his civil rights on completion of his sentences for the state law felonies, these convictions could not be considered “violent felonies” for the purpose of applying the fifteen-year mandatory minimum sentence of section 924(e)(1). The district court rejected Traxel’s argument, finding that although Minn.Stat. § 609.165 subd. 1 restores a convicted felon’s basic civil rights upon his release from custody, other Minnesota statutes impose substantial restrictions on those civil rights. United States v. Traxel, Cr. No. 4-88-140, mem. op. at 4-6 (D.Minn. May 16, 1989) (citing Presley v. United States, 851 F.2d 1052 (8th Cir.1988)). The court found that these remaining restrictions indicated that Minnesota had not substantially restored the civil" }, { "docid": "12083393", "title": "", "text": "procedure. United States v. Brewer, 853 F.2d 1319, 1321 (6th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989). See also United States v. Hawkins, 811 F.2d 210, 220 (3rd Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). . That portion of the indictment read as follows: COUNT TWO: (18 U.S.C. § 922(g)(1); 18 U.S.C. § 924) The Grand Jury charges: On or about February 25, 1988, within the Northern District of Alabama, the defendant, having been convicted on October 4, 1979, in the Circuit Court of Calhoun County, Alabama, for possession of a pistol after conviction of a crime of violence, to-wit: robbery, a crime punishable by imprisonment for a term exceeding one year, did knowingly possess firearms, that is, a Winchester .22 caliber rifle and a Marlin .30-30 caliber rifle, which had been transported in interstate commerce, in violation of Title 18, United States Code § 922(g)(1); Title 18, United States Code, § 924. . 844 F.2d 415 (7th Cir.), cert. denied, - U.S. -, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988). . 18 U.S.C. § 922(g) (West Supp.1989) provides in pertinent part: \"It shall be unlawful for any person (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.\" . 18 U.S.C. § 924(a)(1). . 18 U.S.C. § 924(e)(1) (West Supp.1989) reads in pertinent part: \"In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend" } ]

[ { "docid": "11452061", "title": "", "text": "prima facie § 1983 case is without doubt. The apparent cause of plaintiff’s confusion on this point is the language in Bryan, cited by plaintiff, which states: “[IJntent to imprison without legal authority need not be proved as an element of the prima facie case,” 530 F.2d at 1213 (emphasis in original) (footnote omitted). By that language the Court meant only that a defendant’s belief that his actions are lawful, a question quite apart from legality vel non, is relevant as an affirmative defense. See id. (“Thus, a prima facie case is made out against a jailer even when he believes he has legal authority to detain a prisoner. Accordingly, whatever impact his good faith has, it must be as an element of a defense”). Although we do not doubt that “illegality” must be proved by the plaintiff in a § 1983 false imprisonment, we nonetheless find error in submitting that issue to the jury. The illegality of Judge Merckle’s actions could hardly be more lucid. Defendant’s theory at trial was that he was acting as a “conservator of the peace” when he jailed Harper. Such an officer has the power to arrest and to commit pending trial. Judge Merckle did more; he acted as complaining witness, “arresting” officer— although Harper was not formally arrested — finder of fact, and judge. All of these actions were taken without regard for the Fourteenth Amendment, see Anderson v. Nosser, 456 F.2d 835, 841 (5th Cir.) cert. denied 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972), or the Constitution of the State of Florida, see e. g., Fla.Const. art. I, § 14 (bail as a matter of right). Judge Merckle’s actions were, then, clearly illegal. And in the face of such obvious illegality, the district court committed reversible error by submitting that question to the jury. B. Interrogatory 7 This interrogatory, to reiterate, addresses plaintiff’s awareness of his confinement and his resulting “damages.” Although the inexplicable jury response to interrogatory 7 was negative, the appropriate answer to the question shines forth from the facts, the evidence, and the pretrial stipulation. As" } ]

[ { "docid": "11168463", "title": "", "text": "stated, we hold that Mrs. James was not seized in violation of the Fourth Amendment. Having found no constitutional violation, we hold that Officer Marshall is entitled to qualified immunity. C Mrs. James also alleges that she was falsely imprisoned by Officer Marshall after she was forced to accompany her daughter to the hospital. In this regard, the Complaint alleges: 146. Wright Township Police Department officers intended that Plaintiff Cheryl James should accompany her daughter. 147. Wright Township Police used the force of their authority and threat of future arrest to compel Cheryl James to leave her home in an ambulance. 148. Cheryl James was thereafter confined and restrained to the ambulance. Compl. ¶¶ 146^8. To state a claim for false imprisonment, a plaintiff must establish: (1) that she was detained; and (2) that the detention was unlawful. See Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“The sort of unlawful detention remediable by the tort of false imprisonment is detention without legal process.” (citations omitted) (emphasis deleted)). A false imprisonment claim under § 1983 which is based on an arrest made without probable cause, as Mrs. James alleges here, is grounded in the Fourth Amendment’s guarantee against unreasonable seizures. Groman, 47 F.3d at 636. As we have explained, Mrs. James has not pleaded that she was seized within the meaning of the Fourth Amendment. She was urged by officers to accompany her daughter in the ambulance, and she agreed to do so. She was free to leave at any time. Indeed, she does not allege that any Wright Township police officers accompanied her in the ambulance or even that they proceeded to the hospital separately. Accordingly, Mrs. James cannot show that she was falsely imprisoned. Therefore, the District Court erred when it failed to grant Officer Marshall qualified immunity on this claim as well. IV For the foregoing reasons, we will reverse the judgment of the District Court. . Mrs. James had taken anti-depression medication and had consumed numerous alcoholic beverages. She alleges that the medication left her feeling extremely drowsy. Mr. James" }, { "docid": "22064675", "title": "", "text": "our view, a rational jury could not find that the officers’ judgment was so flawed that no reasonable officer would have made a similar choice. Id. The defendants are entitled to summary judgment on this claim. 2. The Malicious Prosecution Claim The plaintiffs second § 1988 claim alleges that she was the victim of malicious prosecution. Like false arrest, this common law tort states a claim under § 1983 only if it implicates the plaintiffs federal statutory or constitutional rights. The essence of Mrs. Lennon’s malicious prosecution claim is that she was charged with obstructing governmental administration without probable cause, in violation of her Fourth Amendment rights. In assessing whether Backaus and Gordon were objectively reasonable in their belief that they had probable cause to charge the plaintiff with a violation of § 195.05, we apply the same standard that we used to evaluate qualified immunity in the false arrest context. O’Neill v. Town of Babylon, 986 F.2d 646, 649-50 (2d Cir.1993). That is, was it objectively reasonable for the officers to believe that probable cause existed or could officers of reasonable competence disagree on whether the probable cause test was met? Id. (quoting Golino, 950 F.2d at 870). For the reasons set forth above in our analysis of the plaintiff’s false arrest claim, we find that competent officers could disagree over whether the defendants had probable cause to believe that Mrs. Lennon was obstructing governmental administration. Accordingly, the defendants were also entitled to summary judgment on this claim. 3. The Excessive Force Claim The plaintiffs third § 1983 claim alleges that the defendants used excessive force in arresting her. In Graham v. Con-nor, the Supreme Court held that “all claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” 490 U.S. at 395, 109 S.Ct. at 1871. Determining whether the force used during an arrest is “reasonable” requires balancing the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against" }, { "docid": "19696490", "title": "", "text": "(5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the “ ‘facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.’ ” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the “ ‘key ingredient justifying the decision of a law enforcement officer to take action.’” United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976)). To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man’s belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown’s movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury’s finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest. As the jury found that Burns did not have probable cause to detain or arrest Mrs. Brown, it could also find" }, { "docid": "8901189", "title": "", "text": "her employer, she acted with a good faith belief that her acts were constitutional. However, defendant has not offered any evidence that DOC or UCONN policy required or even permitted physical detention of an employee who wished to leave the facility in violation of a direct order. Moreover, viewing all facts in the light most favorable to plaintiff, the record currently before the Court does not compel the conclusion that an objectively reasonable official in defendant’s position could disagree as to the legality of her actions, as the jury could find that detaining plaintiff and requiring her to complete a Medical Incident Report form, despite her protests that she needed to leave for medical reasons, was sufficiently arbitrary and unreasonable that other officials “of reasonable competence” would not have believed it was lawful. Cf. Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir.2001) (“A defendant is ... entitled to summary judgment on qualified immunity grounds if a jury, viewing all facts in the light most favorable to the plaintiff, could conclude that officers of reasonable competence could disagree on the legality of the defendant’s actions.”) (citations and quotations omitted). Defendant has therefore not proved her entitlement to qualified immunity at this stage. B. State law claims 1. False Imprisonment “ ‘[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another.’” Rivera v. Double A Transp. Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999) (quoting Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953)). “ ‘A person is not hable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.’ ” Rivera, 248 Conn. at 31, 727 A.2d 204 (quoting Green v. Donroe, 186 Conn. 265, 268, 440 A.2d 973 (1982) (internal citations omitted)). [11] Defendant argues that plaintiffs false imprisonment claim must be dismissed because she was not detained, and further argues that the circumstances of an employer ordering an employee not to leave cannot amount to false imprisonment as a matter" }, { "docid": "19696507", "title": "", "text": "background directly caused the constitutional violations of which Mrs. Brown now complains. Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir.) (section 1983 liability attaches only “where the municipality itself causes the constitutional violation” at issue), cert. denied, — U.S. -, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992). Therefore, the violation of Mrs. Brown’s constitutional rights was affirmatively linked to Bryan County’s decision to hire Burns for law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276 (5th Cir.1988). CONCLUSION After a thorough review of the record, this Court finds that the evidence supports the jury’s verdict holding Burns and Bryan County liable for Mrs. Brown’s § 1983 claim based on her false arrest, false imprisonment and the inadequate hiring of Burns. We also find that the district court did not plainly err in dismissing the jury’s award for Mrs. Brown’s loss of past income and future earning capacity. For these reasons, the jury’s verdict stands and the district court’s judgment is AFFIRMED. . The original panel opinion, to which Judge Emilio M. Garza dissented, Brown v. Bryan County, Ok., 53 F.3d 1410 (5th Cir.1995), is withdrawn and is replaced in toto by this opinion, in which Judge Wiener continues to concur. . This suit was originally brought against several parties, but the district court dismissed the claims concerning the other Defendants, leaving Biyan County and Stacy Bums as the only Defendants. .Apparently, the road traveled on was winding, thereby, diminishing the visibility of other vehicles approaching from behind. . Although Bums was working for the Sheriff's Department, he was not authorized to carry a firearm or drive a squad car. . Mrs. Brown received a total of four operations on her knees. Moreover, medical testimony was elicited at trial which showed that Mrs. Brown would ultimately require total knee replacements. . The deputies testified that they were pursuing the Browns at speeds in excess of 100 miles per hour. . The fact that two firearms were found in the truck after the arrest does not make Bums actions any more or less" }, { "docid": "19696488", "title": "", "text": "further testified that he did not believe that he turned the truck around either in a reckless fashion nor with wheels squealing or throwing gravel, and that he drove away at a normal rate of speed. Finally realizing that they were being pursued, Mr. Brown pulled over only to find a gun pointed at him. They were ordered to put their hands up and they did so. Mrs. Brown then testified that Burns ran to her side of the vehicle and ordered her to get out. She was paralyzed with fear and heard Bums repeat the command. According to her testimony, however, she was not slow in responding to Burns’ orders and she did not make any sudden moves while exiting the vehicle. Her only forward movement was to exit the truck and, contrary to Burns’ testimony, she did not reach for anything. Then, while she was exiting the truck, Burns suddenly grabbed her arm, yanked her out, spun her around and threw her to the pavement. She could not break her fall because one aim was raised and Bums firmly gripped the other. In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns’ actions. Mrs. Brown’s expert, for example, concluded that the force applied by Burns in this situation was unjustified and excessive. The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown’s favor. Under our standard of review, when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury’s. Therefore, we will not interfere with the fact finder’s conclusion that Burns’ actions were unreasonable and that the force he used was excessive. II. Notwithstanding the jury’s findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn’s actions, thereby precluding Mrs. Brown’s § 1983 claim for false arrest. There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause. Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189" }, { "docid": "16322477", "title": "", "text": "issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Id., at 248-49, 106 S.Ct. 2505. “In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought.” Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). I. Plaintiffs § 1983 Claims Plaintiffs first claim for relief alleges that the individual police officers acting under color of law deprived him of his civil rights guaranteed by the United States Constitution. These alleged deprivations are of two types: false arrest and malicious prosecution. A. Necessity of probable cause “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). “To prove the elements of false arrest under New York law plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994). An officer is privileged to make an arrest if he or she has probable cause to do so. See N.Y.Crim. Proc. § 140.10(l)(a) & (b). The presence of probable cause is therefore a complete defense to an action for false arrest whether that action is brought under state law or under § 1983. Weyant, 101 F.3d at 852. Probable cause exists “when the arresting officer has knowledge or reasonable trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir.1995). Probable cause may exist even if the officer is acting upon mistaken or false information as" }, { "docid": "5780373", "title": "", "text": "of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the “ ‘facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.’ ” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the “ ‘key ingredient justifying the decision of a law enforcement officer to take action.’” United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976)). To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man’s belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown’s movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir. 1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury’s finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest. As the jury found that Burns did not have probable cause to" }, { "docid": "19696489", "title": "", "text": "aim was raised and Bums firmly gripped the other. In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns’ actions. Mrs. Brown’s expert, for example, concluded that the force applied by Burns in this situation was unjustified and excessive. The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown’s favor. Under our standard of review, when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury’s. Therefore, we will not interfere with the fact finder’s conclusion that Burns’ actions were unreasonable and that the force he used was excessive. II. Notwithstanding the jury’s findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn’s actions, thereby precluding Mrs. Brown’s § 1983 claim for false arrest. There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause. Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the “ ‘facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.’ ” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the “ ‘key ingredient justifying the decision of a law enforcement officer to take action.’” United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct." }, { "docid": "11672508", "title": "", "text": "Whalen, 21 F.Supp.2d 1006, 1016 (D.Minn.1998) (“the use of force by an officer must be excessive to constitute battery”). 2. False Arrest and False Imprisonment Binion next brings claims of false arrest and false imprisonment. “An arrest made without proper legal authority is a false arrest, and any subsequent restraint is false imprisonment.” Adewale, 21 F.Supp.2d at 1016. The Court has already held that Binion was arrested without probable cause, and thus she obviously has a viable claim for false arrest and false imprisonment. Defendants assert that they are entitled to official immunity on these claims. Official immunity from state-law claims is analogous to, although different in some respects from, qualified immunity from federal-law claims. “The doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a wilful or malicious wrong.” Rico v. State, 472 N.W.2d 100, 106-07 (Minn.1991). In.. this context, malice means “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Id. at 107 (citation and quotations omitted). Because, as explained above, the Court cannot find that, the officers had even arguable probable cause to arrest and detain Binion, the Court cannot find that the officers are entitled to official immunity. A decision on this issue, like a decision on qualified immunity, will have to await the factual findings of the jury. Defendants’ motion for summary judgment on these claims is denied. 3. Negligence Finally, Binion brings a claim of negligence against the City. Binion barely mentions this claim in her brief. She has not addressed the City’s argument that it did not owe her a duty of care, nor has she identified the source of the duty that she alleges was breached, nor has she pointed to anything in the record supporting a negligence claim. This Court does not function as a research assistant for the parties. If Binion is serious about her negligence claim, then it is her responsibility to brief it" }, { "docid": "19696491", "title": "", "text": "489, 50 L.Ed.2d 587 (1976)). To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man’s belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown’s movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury’s finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest. As the jury found that Burns did not have probable cause to detain or arrest Mrs. Brown, it could also find from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). Under § 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which time she was never informed of the nature of the charges for which she was being detained, and subsequently no charges were ever brought. In light of such evidence, a finding of false imprisonment is proper. III. Appellants also contest the jury’s finding that Burns was not entitled to qualified immunity. A proper analysis of a" }, { "docid": "5780367", "title": "", "text": "elbow, extracted her from the vehicle and spun her to the ground. Mrs. Brown’s impact with the ground caused severe injury to her knees, requiring corrective surgery. While Mrs. Brown was pinned to the ground, Burns handcuffed her and left to assist Dep uty Morrison in subduing her husband. Mrs. Brown remained handcuffed anywhere from a minimum of thirty minutes to just over an hour. According to Mrs. Brown’s version of the facts, which will be reviewed in greater detail below, the deputies’ pursuit and the force consequently applied against her were unprovoked. Furthermore, she claims that her detention constituted false imprisonment and false arrest. Due to the injuries resulting from that encounter, Mrs. Brown seeks compensation from Burns and Bryan County. Mrs. Brown premised the county’s liability on two related but distinct policy theories: the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the final policymaker for the Sheriffs Department, without adequate screening and Burns’ inadequate training. DISCUSSION The Appellants have presented this Court with a host of issues to support their position that the lower court erred. For efficiency’s sake, we will address only those points that we believe merit review. We first address the claims against Burns for the constitutional injuries that Brown suffered. I. In their first argument, Burns and Bryan County allege that the force applied against Mrs. Brown was proper. Appellants claim that the evidence “undisputedly” established that Burns’ actions on the morning of May 12, 1991, were objectively reasonable. Therefore, the jury’s findings should be reversed. All claims that a law enforcement officer has used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen, are analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test of reasonableness under the Fourth Amendment requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the" }, { "docid": "5780375", "title": "", "text": "detain or arrest Mrs. Brown, it could also find from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). Under § 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which time she was never informed of the nature of the charges for which she was being detained, and subsequently no charges were ever brought. In light of such evidence, a finding of false imprisonment is proper. III. Appellants also contest the jury’s finding that Burns was not entitled to qualified immunity. A proper analysis of a qualified immunity defense requires us to conduct a two (sometimes three) prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine “whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. Second, we ascertain whether the law was clearly established at the time of the official’s action. Siegert, 500 U.S. at 233-34, 111 S.Ct. at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38. Third, we evaluate the “objective reasonableness of [the] official’s conduct as measured by reference to clearly established law.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear that by 1991, use of excessive force, false arrest and false imprisonment had been held to violate citizens’ constitutional rights, thus the qualified immunity defense fails if Burns did not act with probable cause. As the trier" }, { "docid": "5780408", "title": "", "text": "smelled marihuana smoke, creating the probable cause necessary to arrest the passengers. Id. . As this Court finds that liability was proper for the claims of excessive force, false arrest and false imprisonment, it need not address the state law issues involved herein. . \"While it is correct that the reasonableness of the arresting officer's conduct under the circumstances is a question of law for the court to decide, such is not the case where there exist material factual disputes.... ” Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994) (discussing officer's qualified immunity). . Mrs. Brown did not respond to this argument in her briefs. .In the order, the district court stated \"[t]he jury awarded plaintiff substantial damages in this case, including $36,000 for loss of income in the past and $ 180,000 for loss of earning capacity in the future. After a review of the evidence in this case, the Court is convinced that there is no legally sufficient evidentiary basis for the award of these damages. Therefore, judgment should be granted for the defendants on plaintiff's claims for loss of income in the past and loss of earning capacity in the future.” . In the pre-trial order, Appellants' ask \"[wjhether Defendant Board of County Commissioners is liable under 42 U.S.C. § 1983 when they did not participate in any policy decisions with regards to the conduct and operation of the office of Bryan County Sheriff?” Appellants also failed to object to the jury instructions which referred to Sheriff Moore as the final policymaker. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993) (failure to lodge an objection to court's instructions regarding the final policymaker waived the issue). . Mrs. Brown distinguishes her \"policy” claims from \"custom” claims and notes that she could not recover on the latter theory because her injuries were the result of either of two single decisions: Sheriff Moore’s decision to hire Bums or his decision to train Bums inadequately. The injuries, therefore, were not caused by a widespread practice or procedure of inadequately hiring or training personnel." }, { "docid": "5780371", "title": "", "text": "harassed or unnecessarily detained by the deputies. He further testified that he did not believe that he turned the truck around either in a reckless fashion nor with wheels squealing or throwing gravel, and that he drove away at a normal rate of speed. Finally realizing that they were being pursued, Mr. Brown pulled over only to find a gun pointed at him. They were ordered to put their hands up and they did so. Mrs. Brown then testified that Burns ran to her side of the vehicle and ordered her to get out. She was paralyzed with fear and heard Burns repeat the command. According to her testimony, however, she was not slow in responding to Bums’ orders and she did not make any sudden moves while exiting the vehicle. Her only forward movement was to exit the truck and, contrary to Burns’ testimony, she did not reach for anything. Then, while she was exiting the track, Burns suddenly grabbed her arm, yanked her out, spun her around and threw her to the pavement. She could not break her fall because one arm was raised and Burns firmly gripped the other. In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns’ actions. Mrs. Brown’s expert, for example, concluded that the force applied by Bums in this situation was unjustified and excessive. The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown’s favor. Under our standard of review, when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury’s. Therefore, we will not interfere with the fact finder’s conclusion that Burns’ actions were unreasonable and that the force he used was excessive. II. Notwithstanding the jury’s findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn’s actions, thereby precluding Mrs. Brown’s § 1983 elaim for false arrest. There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause. Fields v. City" }, { "docid": "19696492", "title": "", "text": "from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). Under § 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which time she was never informed of the nature of the charges for which she was being detained, and subsequently no charges were ever brought. In light of such evidence, a finding of false imprisonment is proper. III. Appellants also contest the jury’s finding that Burns was not entitled to qualified immunity. A proper analysis of a qualified immunity defense requires us to conduct a two (sometimes three) prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine “whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. Second, we establish whether the law was clearly established at the time of the official’s action. Siegert, 500 U.S. at 233, 111 S.Ct. at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38. Third, we evaluate the “objective reasonableness of [the] official’s conduct as measured by reference to clearly established law.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear that by 1991, use of excessive force, false arrest and false imprisonment had been held to violate citizens’ constitutional rights, thus the qualified immunity defense fails if Burns did not act with probable cause. And as the trier of faet determined that Burns did not have" }, { "docid": "5780374", "title": "", "text": "Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976)). To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man’s belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown’s movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir. 1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury’s finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest. As the jury found that Burns did not have probable cause to detain or arrest Mrs. Brown, it could also find from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). Under § 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which time she was never informed of the nature of the charges for which she was being detained, and subsequently no charges were ever brought. In light of such evidence, a finding of false imprisonment is proper. III. Appellants also contest the jury’s finding that Burns was not" }, { "docid": "5780372", "title": "", "text": "She could not break her fall because one arm was raised and Burns firmly gripped the other. In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns’ actions. Mrs. Brown’s expert, for example, concluded that the force applied by Bums in this situation was unjustified and excessive. The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown’s favor. Under our standard of review, when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury’s. Therefore, we will not interfere with the fact finder’s conclusion that Burns’ actions were unreasonable and that the force he used was excessive. II. Notwithstanding the jury’s findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn’s actions, thereby precluding Mrs. Brown’s § 1983 elaim for false arrest. There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause. Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the “ ‘facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.’ ” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the “ ‘key ingredient justifying the decision of a law enforcement officer to take action.’” United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th" }, { "docid": "19696484", "title": "", "text": "at the wrist and elbow, extracted her from the vehicle and spun her to the ground. Mrs. Brown’s impact with the ground caused severe injury to her knees, requiring corrective surgery. While Mrs. Brown was pinned to the ground, Burns handcuffed her and left to assist Deputy Morrison in subduing her husband. Mrs. Brown remained handcuffed anywhere from a minimum of thirty minutes to just over an hour. According to Mrs. Brown’s version of the facts, which will be reviewed in greater detail below, the deputies’ pursuit and the force consequently applied against her were unprovoked. Furthermore, she claims that her detention constituted false imprisonment and false arrest. Due to the injuries resulting from that encounter, Mrs. Brown seeks compensation from Bums and Bryan County. Mrs. Brown premised the county’s liability, inter alia, on the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the county policymaker for the Sheriffs Department. DISCUSSION The Appellants have presented this Court with a host of issues to support their position that the lower court erred. For efficiency’s sake, we will address only those points that we believe merit review. We first address the claims against Burns for the constitutional injuries that Brown suffered. I. In their first argument, Bums and Bryan County allege that the force applied against Mrs. Brown was proper. Appellants claim that the evidence “undisputedly” established that Burns’ actions on the morning of May 12, 1991, were objectively reasonable. Therefore, the jury’s findings should be reversed. All claims that a law enforcement officer has used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen, are analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test of reasonableness under the Fourth Amendment requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively" }, { "docid": "19696506", "title": "", "text": "-, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). In light of the law enforcement duties assigned to deputies, the obvious need for a thorough and good faith investigation of Burns, and the equally obvious fact that inadequate screening of a deputy could likely result in the violation of citizens’ constitutional rights, Sheriff Moore can reasonably be said to have acted with deliberate indifference to the public’s welfare when he hired Burns. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). The failure to conduct a good faith investigation of the prospective employee amounted to Sheriff Moore deliberately closing his eyes to the Burns’ background. Such indifferent behavior cannot be tolerated when the prospective applicant will be employed in a position of trust and authority. Additionally, the jury could find that hiring an unqualified applicant and authorizing him to make forcible arrests actually caused the injuries suffered by Mrs. Brown. That is, the policymaker’s (Sheriff Moore’s) single action of hiring Bums without an adequate review of his background directly caused the constitutional violations of which Mrs. Brown now complains. Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir.) (section 1983 liability attaches only “where the municipality itself causes the constitutional violation” at issue), cert. denied, — U.S. -, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992). Therefore, the violation of Mrs. Brown’s constitutional rights was affirmatively linked to Bryan County’s decision to hire Burns for law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276 (5th Cir.1988). CONCLUSION After a thorough review of the record, this Court finds that the evidence supports the jury’s verdict holding Burns and Bryan County liable for Mrs. Brown’s § 1983 claim based on her false arrest, false imprisonment and the inadequate hiring of Burns. We also find that the district court did not plainly err in dismissing the jury’s award for Mrs. Brown’s loss of past income and future earning capacity. For these reasons, the jury’s verdict stands and the district court’s judgment is AFFIRMED. . The original panel opinion," } ]

[ { "docid": "2416990", "title": "", "text": "Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and the order here clearly restrained the media in their attempts to gather news. As the order imposed this restraint prior to any attempt to contact the jurors, there is a heavy presumption against its constitutional validity. Bantam Books v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The government in order to sustain the order must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest, Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). We believe the government has failed to meet this heavy burden. Since the trial had concluded, there was no possibility that allowing the jurors to speak to newsmen would deprive Sherman or Coupez of a fair trial. Those cases dealing with the so-called “free press-fair trial” issue are not applicable here. The justifications offered for the order are to enable the jurors to serve on future jury panels and to protect the jurors from harassment. Less restrictive alternatives are clearly available for each of these claimed threats. If a juror’s impartiality were to be questioned because the juror has spoken to the media that could be discovered on future voir dire and the juror excused. The district court could, in the alternative, excuse all of these jurors from further service. We stress that the inability to serve on future juries is not such a serious nor an imminent threat to justify this restraint and that alternatives are easily available. In regard to protecting the jurors from harassment, we also fail to see a clear and present danger. The jurors individually, perhaps, may not regard media interviews as harassing. If harassment" } ]

[ { "docid": "7441491", "title": "", "text": "—U.S.-, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986). It is the public to whom the First Amendment guarantees reasonable access to criminal proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). And it is individuals, not the government, to whom First Amendment interests attach. To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master. If the combined workings of these constitutional guarantees, coupled with the operation of reasonable restraints of professional responsibility applicable to the attorneys in a case, should result in an atmosphere that threatens the ability of the government to try the defendant in a “fair” forum, the trial court still would have available other remedies suggested above. See Nebraska Press Association v. Stuart, 427 U.S. 539, 551-55, 96 S.Ct. 2791, 2799-2801, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Although in unusual situations the balance may occasionally tip against the prosecution, this is an inevitable result of our deep-rooted American tradition of open judicial proceedings. See Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823; Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-80 (6th Cir.1983). II. The order in the instant case is clearly overbroad and fails to meet the clear and present danger standard in the context of a restraint on a defendant in a criminal trial. Such a threat must be specific, not general. It must be much more than a possibility or a “reasonable likelihood” in the future. It must be a “serious and imminent threat” of a specific nature, the remedy for which can be narrowly tailored in an injunctive order. Carroll v. President and Commissioner of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325 (1968) (such an order “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate”); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251-52 (7th Cir.1975), cert. denied, 427 U.S." }, { "docid": "5767679", "title": "", "text": "the order, seek review, and forfeit, at least temporarily, the very right the would-be speaker seeks to vindicate. The dilemma is particularly acute where First Amendment interests are at stake, for even a temporary restraint on expression may constitute irreparable injury. Nebraska Press Ass'n, 427 U.S. at 559, 96 S.Ct. 2791, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347 (1968). A judicial order restraining speech casts the judge in a role comparable to that of a censor. To escape the sanctions associated with violating the order, the speaker is inevitably led to clear his expression with the judge in advance, and the speaker bears the burden of proving that the expression is inoffensive. See Near v. Minnesota, 283 U.S. at 712-13, 51 S.Ct. 625; cf. Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (to avoid constitutional infirmity censor must bear burden of showing that film is unprotected.) Where the restriction is by criminal law, of course, the burden is on the state to prove that the speech did in fact pose a great danger. In Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248-49 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976), the Court concluded that since the collateral bar rule did not apply in a challenge to the constitutionality of the district court’s standing “no comment” rules, such rules did not constitute a “prior restraint.” Nonetheless, the Court did subject them to close scrutiny. See note 22, infra. We have no occasion to decide whether the collateral bar rule could constitutionally be applied in this case. Compare United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), with United States v. Dickinson, 465 F.2d 496, 509-513 (5th Cir. 1972), aff’d 476 F.2d 373 (5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223 (1973). See generally, Goodale, supra note 14 at 508-12; Barnett, The Puzzle of Prior Restraint, 29 Stan.L.Rev. 539, 551 58 (1977). Even in the absence of the collateral" }, { "docid": "1746102", "title": "", "text": "may by limited in order to ensure a fair trial, gag orders such as this one still exhibit the characteristics of prior restraints. See In re Dow Jones, 842 F.2d 603, 609 (2d Cir.1988); Levine v. United States District Court, 764 F.2d 590, 595 (9th Cir.1985). Prior restraints — “predetermined judicial prohibition restraining specified expression” — face a well-established presumption against their constitutionality. See Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980) (en banc) (citations omitted). In general, a prior restraint (usually directed at the press) will be upheld only if the government can establish that “the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest.” See Levine, 764 F.2d at 595 (citations omitted). The government must also establish that the order has been narrowly drawn and is the least restrictive means available. See id. (citations omitted). A. Appropriate Legal Standard The first element of the prior restraint analysis-the showing of harm necessary to justify the need for the restraint-requires some discussion in the present context because the gag order at issue here is directed at trial participants and not the press. The Supreme Court and other Courts of Appeals have recognized a “distinction between participants in the litigation and strangers to it,” pursuant to which gag orders on trial participants are evaluated under a less stringent standard than gag orders on the press. See Gentile, 111 S.Ct. at 2743-44; News-Journal Corp. v. Foxman, 939 F.2d 1499, 1512-13 & n. 16 (11th Cir.1991); Dow Jones, 842 F.2d at 608-09; Levine, 764 F.2d at 595. The genesis of this distinction lies in part in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), which concerned the massive publicity surrounding the trial of Dr. Sam Sheppard. The Supreme Court observed that during Sheppard’s trial, “bedlam,” in the form of reporters virtually taking over the courtroom and accosting witnesses as they left the building, “reigned at the courthouse.” See id. at 1518. The Court also noted that inadmissible (and often inaccurate) information had been leaked" }, { "docid": "5767675", "title": "", "text": "of 194 U.S.App.D.C., at 203 of 598 F.2d (emphasis in original). Similarly, the defendants aver that the order \"expires of course at the conclusion of the litigation.” Fed.Res.Br. at 33. Although it is reasonable to assume this is what the district court had in mind, there is no support for this in the record. By its terms, the order continues in effect “until modified or removed by subsequent express order of this Court.” See note 8 supra. . Accord, New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Bantam Books v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). . Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 389 90, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Near v. Minnesota, 283 U.S. 697, 713 15, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 648, 650 (1955). . Under the standards laid down by the Court, the press may be restrained only when (1) pretrial publicity is likely to be so pervasive that it probably will have an effect on jurors; (2) there are no alternative methods of dealing with the problem through (a) change of venue, (b) postponement of the trial, (c) questioning jurors closely during voir dire, (d) clear instructions at trial, or (e) sequestration of the jury; and (3) the prior restraint will be effective. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 563 64, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). As one commentator has noted, “the practical impact of the rule announced by Chief Justice Burger is to outlaw all prior restraints in fair trial/free press cases.” Goodale, The Press Ungagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29 Stan.L.Rev. 497, 498 (1977). . An administrative" }, { "docid": "2745377", "title": "", "text": "in a calm and serene atmosphere which the Supreme Court directed trial judges to maintain in the Sheppard decision.” We hold that before a trial court can limit defendants’ and their attorneys’ exercise of first amendment rights of freedom of speech, the record must contain sufficient specific findings by the trial court establishing that defendants’ and their attorneys’ conduct is “a serious and imminent threat to the administration of justice.” Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546 (1947). Applying either the standard that the speech must create a “clear and present danger,” Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), of a serious and imminent threat to the administration of justice, or the lesser standard that there must be a “reasonable likelihood,” United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969), of a serious and imminent threat to the administration of justice, we hold that the trial court’s order is constitutionally impermissible. Directing ourselves to the basis of Judge Robson’s order, we find that: (1) The newspaper articles appended to the defendants’ brief in support of a motion for a continuance which led the trial court to believe defendants sought publicity via contacting the press and press releases were seven months old when Judge Robson issued his order and are insufficient support for the proposition that the defendants' future first amendment utterances, if any, would interfere with the fair administration of the trial. (2) While we agree “[i]t is fundamental to our system of constitutional democracy that issues of law and fact in a criminal proceeding be resolved in the courts, and not in the news media nor in the streets,” we believe equally fundamental to our system is the right of all citizens, even if they be criminal defendants to exercise their first amendment rights. In the absence of a clear showing that an exercise of those first amendment rights will interfere with the rights of the government and the defendants for a fair trial, we reject this prior restraint on first amendment freedoms. (3) Any" }, { "docid": "7313202", "title": "", "text": "prong of the test articulated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), which is set forth in Judge Beezer’s opinion. See CBS, Inc. v. United States District Court, 729 F.2d 1174, 1178-82 (9th Cir.1984). For this reason I cannot on this record subscribe to Judge Beezer’s apparent approval of a revised form of prior restraint order. As we all recognize, this case involves striking a delicate balance between rights guaranteed by the First and Sixth Amendments. Prior precedents tell us, however, that these rights are not to be weighed equally when a prior restraint is involved. Prior restraints on free speech are subject to strict scrutiny and may be upheld, if at all, only in extraordinary circumstances. See CBS, 729 F.2d at 1183. There is a “heavy presumption against [the] constitutional validity” of a prior restraint. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). Thus, it is not enough for a court to decide that the fair trial right may be affected by the exercise of free speech. Nor is it enough for us to conclude, as we could here, that the prior restraint has a rational basis. Instead, we must apply an “enormously exacting” standard. CBS, 729 F.2d at 1178. As we said in CBS, Only if it is “clear ... that further publicity, unchecked, would so distort the views of potential jurors that 12 c[an] not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court” can an appellate court even consider upholding a prior restraint. Id. (quoting Nebraska Press, 427 U.S. at 569, 96 S.Ct. at 2807). The district court’s focus, then, should be on the impact of the pretrial publicity rather than its source. The court should consider the possibility that pretrial publicity may prejudice the “entire community.” CBS, 729 F.2d at 1180. In the context of this case, this possibility will probably be remote. As we noted in CBS, “the courts" }, { "docid": "23232305", "title": "", "text": "expression and speech must be subjected by the courts to the closest scrutiny. See generally Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). This principle has been expressed by the Supreme Court in a variety of ways. To justify imposition <->f a prior restraint, the activity restrained must pose a clear and present danger, or a serious or imminent threat tó a protected competing interest. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). A system of prior restraints of expression bears a heavy presumption ¿gainst its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Southeastern Promotions, Ltd. v. Conrad, supra. Hence, the government carries a heavy burden of showing a justification for its imposition. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); and see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In Chase v. Robson, 435 F.2d 1059 (1970), the Court of Appeals for the Seventh Circuit ordered the issuance of a writ of mandamus directing the district court to vacate its order in a pending criminal case which read as follows: It is further ordered that counsel for both the Government and the defendants, as well as each and every defendant herein, make or issue no statements, written or oral, either at a public meeting or occasion, or for public reporting or dissemination in any fashion, regarding the jury or jurors in" }, { "docid": "20570064", "title": "", "text": "the end can be more narrowly achieved.” * * In other words, the order must be tailored as precisely as possible to the exact needs of the case. Id, pp. 183-184, 89 S.Ct. p. 353. Turning now to the merits of this action, there are again certain general principles of law which are so firmly established as to be recognized by all concerned. The right of free speech is universally recognized as one of the most precious rights guaranteed by the First Amendment to the United States Constitution, and restraints upon its exercise are not lightly imposed. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). It is now recognized that public demonstrations come within the protection of the First Amendment, as an expression of free speech and assembly. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). It is also generally recognized that selective restraint upon the right of free speech cannot be countenanced by the courts. Cox v. Louisiana, supra. Prior restraints of the exercise of the right of free speech bear a heavy presumption against their constitutional validity. Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Infringement of the right of free speech, or other rights protected by the First Amendment, of itself constitutes irreparable injury. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116 (1965). On the other hand, the right of free speech is not an absolute right, and may be restrained when the exercise of /hat right would present a clear and /present danger to the public welfare. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Further, government officials may impose reasonable regulations and restrictions on the use of the public streets, without infringing on First Amendment rights. Cox v. Louisiana, supra. With these rules as a predicate, the Court will now consider the question of the injunctive order restraining all statements by witnesses appearing before the Grand Jury. Under the statutes of the State of Ohio, all members of a grand jury are" }, { "docid": "7313201", "title": "", "text": "should be struck is between First Amendment rights, the Sixth Amendment rights of the accused, and the public’s expectation that the trial will be fair and before an impartial jury. This sort of delicate balancing should be undertaken reluctantly; but when provoked by attorneys, whether prosecutors or defenders, who seek by use of the press to obtain as partial a jury as possible, courts must respond. NELSON, Circuit Judge, concurring in part and dissenting in part: I concur in Parts I, II, III, and IVA of Judge Beezer’s opinion, and agree that the writ of mandamus should be granted. Also, like Judge Sneed, I find much to agree with in the remainder of the opinion. I cannot fully concur, however, because I do not believe that the record reflects an adequate showing of a “clear and present danger or a serious and imminent threat” to the empaneling of an impartial jury in this case. See United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir.1978). Thus, the district court’s order does not meet the first prong of the test articulated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), which is set forth in Judge Beezer’s opinion. See CBS, Inc. v. United States District Court, 729 F.2d 1174, 1178-82 (9th Cir.1984). For this reason I cannot on this record subscribe to Judge Beezer’s apparent approval of a revised form of prior restraint order. As we all recognize, this case involves striking a delicate balance between rights guaranteed by the First and Sixth Amendments. Prior precedents tell us, however, that these rights are not to be weighed equally when a prior restraint is involved. Prior restraints on free speech are subject to strict scrutiny and may be upheld, if at all, only in extraordinary circumstances. See CBS, 729 F.2d at 1183. There is a “heavy presumption against [the] constitutional validity” of a prior restraint. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). Thus, it is not enough for a court to decide that" }, { "docid": "23257558", "title": "", "text": "[at 2802], Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347 [352, 21 L.Ed.2d 325] (1968).\" In re Halkin, 598 F.2d at 184 n. 15; see also Goldblum, 584 F.2d at 907. (“A broadcaster or publisher should not, in circumstances such as those in this case, be required to make a sudden appearance in court and then to take urgent measures to secure appellate relief, all the while weighing the delicate question of whether or not refusal to comply with an apparently invalid order constitutes a contempt.”); Goodale, 29 Stan.L.Rev. at 509 (Walker does not require a party subject to a transparently invalid prior restraint to seek appellate review.). . Nebraska Press Assoc., 427 U.S. at 558, 96 S.Ct. at 2802. . Southeastern Promotions Ltd., 420 U.S. at 558, 95 S.Ct. at 1246; New York Times Co., 403 U.S. at 714, 91 S.Ct. at 2141; Organization for a Better Austin, 402 U.S. at 419, 91 S.Ct. at 1577. . See State ex rel. Superior Court of Snohomish County, 79 Wash.2d 69, 483 P.2d 608; Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); Cooper, 50 Ill.App.3d 250, 8 Ill.Dec. 508, 365 N.E.2d 746 (1977); Barnett, The Puzzle of Prior Restraint, 29 Stan.L.Rev. 539, 553-58 (1977); Goodale, 29 Stan.L.Rev. at 509; see also Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945). In Thomas, a labor organization was enjoined from soliciting union memberships. The organizer violated the order and subsequently challenged its constitutionality arguing that the temporary restraining order constituted a prior restraint on pure speech. The Supreme Court allowed this challenge and reversed the contempt citation. The Journal argues that Thomas stands for the proposition that the collateral bar rule does not apply to prior restraints on pure speech. Because the order of November 13, 1985, was transparently invalid, however, we need not address this issue. We note, however, that Thomas does provide support for our holding. Thomas held that any prior restraint on pure speech" }, { "docid": "5767703", "title": "", "text": "of conjectural harm is insufficient to meet the moving party’s burden. . The infirmities associated with ex parte orders, see Carroll, 393 U.S. at 183-85, 89 S.Ct. 347, strongly militate against issuing protective orders without participation by both parties. There should be no barriers to participation by counsel for both sides, particularly where, as here, both parties already have the materials in their possession. Both parties have been permitted to participate in in camera proceedings in other contexts. See, e. g.. United States v. Nixon, 418 U.S. 683, 715 n. 21, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 59-60, 564 F.2d 531, 544-45 (1977); Dellums v. Powell, 561 F.2d at 251. Cf. United States v. American Telephone and Telegraph Co., 179 U.S.App. D.C. 198, 209, 210-211, 567 F.2d 121, 132, 133-34 (1977). Since protective orders pursuant to Rule 26(c) pose dangers similar to other prior restraints, they should not be entered without the necessary “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649. This means, at a minimum, actual notice of the proposed restraint, Carroll v. President and Commissioners of Princess Anne, 393 U.S. at 181, 89 S.Ct. 347, a judicial determination in an adversary proceeding, Blount v. Rizzi, 400 U.S. 410, 418, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. 734; and prompt appellate review, see National Socialist Party v. Skokie, 432 U.S. at 44, 97 S.Ct. 2205. . Although the Supreme Court has never squarely addressed the issue, its decisions suggest that orders restricting comments by parties and attorneys are a less drastic alternative to gagging the press. See, e. g„ Sheppard v. Maxwell, 384 U.S. 333 at 359, 361-62, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600; Nebraska Press Ass’n, 427 U.S. at 564 & n. 8, 96 S.Ct. 2791 & n. 8; id. at 601 & n. 27, 96 S.Ct. 2791 & n. 27 (Brennan, J., concurring). But cf. Chicago Council of Lawyers, 522" }, { "docid": "1746101", "title": "", "text": "at the courthouse door,’ those rights may be subordinated to other interests that arise” in the context of both civil and criminal trials. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 2207-08 n. 18, 81 L.Ed.2d 17 (1984). “[0]n several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant.” Id. There can be no question that a criminal defendant’s right to a fair trial may not be compromised by commentary, from any lawyer or party, offered up for media consumption on the courthouse steps. See Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965) (“We have always held that the atmosphere essential to the preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all costs.”); Pennekamp, 66 S.Ct. at 1047 (Frankfurter, J., concurring) (“In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries.”). Despite the fact that litigants’ First Amendment freedoms may by limited in order to ensure a fair trial, gag orders such as this one still exhibit the characteristics of prior restraints. See In re Dow Jones, 842 F.2d 603, 609 (2d Cir.1988); Levine v. United States District Court, 764 F.2d 590, 595 (9th Cir.1985). Prior restraints — “predetermined judicial prohibition restraining specified expression” — face a well-established presumption against their constitutionality. See Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980) (en banc) (citations omitted). In general, a prior restraint (usually directed at the press) will be upheld only if the government can establish that “the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest.” See Levine, 764 F.2d at 595 (citations omitted). The government must also establish that the order has been narrowly drawn and is the least restrictive means available. See id. (citations omitted). A. Appropriate Legal Standard The first element of the prior restraint analysis-the showing of harm necessary to justify the need for the restraint-requires some" }, { "docid": "22902439", "title": "", "text": "of solicitation of funds is controverted by affidavits. See n. 25 supra. Solicitation of opt-out requests is not relevant to this Rule 23(b)(2) case. Finally, nothing justifies any inference in this case that communications are likely to “misrepresent the status, purposes and effects of the . . . action and of . [the] Court orders therein.” There are other prerequisites to justification of a prior restraint. It must not sweep too broadly. Rather it “must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.” CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975); see also Nebraska Press Association v. Stuart, supra; Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). There are alternatives to a total ban on communications. See n.13 supra; Developments in the Law — Class Actions, 89 Harv. L.Rev. 1318, 1600-1604 (1976); Wilson, Control of Class Action Abuses Through Regulation of Communications, 4 Class Action Reports 632 (1975). The order before us suppresses essentially everything, and one seeking to exercise his right to speech or association must petition the court. No showing has been made, or even offered, that reasonable alternatives with lesser impact are unavailable. Finally, the restraint “must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.” Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1247, 43 L.Ed.2d at 459. There are none here: no evidence, no way to test the potential abuse premise, no findings of particular abuses present or threatened, and no conclusions of law (except as to the desirability of conciliation). Obviously, there never can be procedural safeguards if by rule or order a wholesale restraint is directed in every case and those restrained are able to escape its impact only by showing good cause to be excepted or risking the vagaries of an arguable good faith defense. The remaining justification for the order is the district judge’s reference to his obligations to encourage private settlement of Title VII charges. U." }, { "docid": "7313171", "title": "", "text": "370 U.S. 375, 383-85, 82 S.Ct. 1364, 1369-70, 8 L.Ed.2d 569 (1962); (2) the order is narrowly drawn, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 183-84, 89 S.Ct. 347, 352-53, 21 L.Ed.2d 325 (1968); Halkin, 598 F.2d at 193-94; Sherman, 581 F.2d at 1361; and (3) less restrictive alternatives are not available, Nebraska Press Association, 427 U.S. at 563, 96 S.Ct. at 2804; CBS, 729 F.2d at 1182-83. We note that the district court’s order applies only to trial participants. The Supreme Court has suggested that it is appropriate to impose greater restrictions on the free speech rights of trial participants than on the rights of nonparticipants. Sheppard v. Maxwell, 384 U.S. 333, 360-63, 86 S.Ct. 1507, 1521-23, 16 L.Ed.2d 600 (1966); see Nebraska Press Association, 427 U.S. at 564, 96 S.Ct. at 2805. The case for restraints on trial participants is especially strong with respect to attorneys. Justice Brennan analyzed the role of attorneys in this context as follows: As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings. Nebraska Press Association, 427 U.S. at 601 n. 27, 96 S.Ct. at 2823 n. 27 (Brennan, J., concurring) (citation omitted). We recognize that attorneys and other trial participants do not lose their constitutional rights at the courthouse door. See L. Tribe, supra, § 12-11, at 627 n. 26; Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum, 29 Stan.L.Rev. 607, 614-18 (1977). Nevertheless, we must analyze the district court’s order in light of the relationship between'the petitioners and the court system. We also note that several other courts have considered similar restraining orders. The overwhelming majority of those courts have upheld the restraining orders." }, { "docid": "7313169", "title": "", "text": "issue under the first amendment by impairing the media’s ability to gather news. See Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972); M. Nimmer, Nimmer on Freedom of Speech § 4.09[B] (1984). But see KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 678 P.2d 431, 439-42 (1984) (holding that limitations on the media’s ability to interview trial participants do not violate the first amendment). The petitioners argue that the district court’s order constitutes an unconstitutional restraint on the media’s ability to gather news. We note, however, that none of the media organizations that could be affected by the district court’s order have joined this action. In general, a party lacks standing to assert the rights of third parties. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531.9 (1984). The rule against third party standing is subject to several well-established exceptions. See id. Under the present procedural posture of this case, none of those exceptions apply. Accordingly, we conclude that the petitioners lack standing to assert the constitutional rights of nonparty media organizations. IV FREEDOM OF SPEECH A. The Appropriate Legal Standard The petitioners contend that the district court’s order is a prior restraint on their first amendment right to free speech. We agree that the district court’s order is properly characterized as a prior restraint. See M. Nimmer, supra, § 4.03. Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints. See id. § 4.04; L. Tribe, American Constitutional Law § 12-32 (1978). Accordingly, the district court’s order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978); see Wood v. Georgia," }, { "docid": "5767631", "title": "", "text": "begin our examination with an almost insurmountable presumption against the validity of this order. However, the fact that the order poses many of the dangers of a prior restraint is sufficient to require close scrutiny of its impact on protected First Amendment expression. The dissent does not dispute that the order has many of the characteristics of a “prior restraint,” but contends that there are, in effect, two different types of prior restraints, one “solely directed at information and documents obtained in discovery” and a second covering all other orders restricting expression. Dissent at-of 194 U.S.App.D.C., at 204 of 598 F.2d. Restraining orders directed at discovery materials are subject to less stringent scrutiny than other restraining orders, according to the dissent, because “[t]he First Amendment interests of litigants in the promulgation of materials exacted from another party through the compulsory processes of the courts are much more limited and of a fundamentally different character” than litigants’ other First Amendment interests. Id. at - of 194 U.S.App.D.C., at 206 of 598 F.2d. We cannot agree with this bifurcated approach to the First Amendment’s protection for speech. B. The First Amendment Interests of Litigants and Lawyers 1. The First Amendment Interest in Litigation and the Administration of Justice Defendants correctly point out that attorneys “have historically been ‘officers of the courts[,]’ ” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975), and that they have a legal and ethical responsibility to safeguard the right to a fair trial. But lawyers’ responsibility to protect the fairness of the judicial process does not mean that lawyers and litigants surrender their First Amendment rights at the courthouse door. Even public officials who have special responsibilities to the court do not necessarily have a “more severely curtailed” right to freedom of expression than “the average citizen.” Wood v. Georgia, 370 U.S. 375, 393, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). In fact, orders restraining extrajudicial comment by parties and lawyers have been uniformly held a serious restriction of fundamental First Amendment rights. In CBS, Inc. v. Young, 522" }, { "docid": "7441492", "title": "", "text": "prosecution, this is an inevitable result of our deep-rooted American tradition of open judicial proceedings. See Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823; Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-80 (6th Cir.1983). II. The order in the instant case is clearly overbroad and fails to meet the clear and present danger standard in the context of a restraint on a defendant in a criminal trial. Such a threat must be specific, not general. It must be much more than a possibility or a “reasonable likelihood” in the future. It must be a “serious and imminent threat” of a specific nature, the remedy for which can be narrowly tailored in an injunctive order. Carroll v. President and Commissioner of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325 (1968) (such an order “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate”); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251-52 (7th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); CBS v. Young, supra. In the instant case, no facts were found which would suggest “a serious and imminent threat,” and the order was neither narrowly tailored nor directed to any specific situation. Nor was there any specific consideration of the less burdensome alternatives of voir dire, sequestration or change of venue. III. That the “clear and present danger” standard should apply to the District Court’s “no discussion” order is reinforced by the divisive political context of this case. The protection of political speech which concerned the court in Near is at the core of the First Amendment. Here the defendant, a Democrat, a black congressman who represents a largely black constituency in Memphis, is entitled to attack the alleged political motives of the Republican adminis tration which he claims is persecuting him because of his political views and his race. One may strongly disagree with the political view he expresses but have no doubt that he has the right to express his outrage. He is entitled" }, { "docid": "23232304", "title": "", "text": "news. It is axiomatic that the First Amendment guarantee of freedom of the press is for the benefit of all the people and not a device to give the press a favored status in society. In Grosjean v. American Press Co., 297 U.S. 233, 249, 56 S.Ct. 444, 80 L.Ed. 660 (1930), the Court quoted from 2 Cooley’s Constitutional Limitations, 8th ed., p. 886 as follows: The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and .general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. We hold, therefore, that the petitioner has standing to maintain the present action and to challenge the validity of the restrictive order entered by the district court. THE VALIDITY OF THE MAY 6 ORDER In a long series of cases the Supreme Court has made it clear that prior direct restraints by government upon First Amendment freedoms of expression and speech must be subjected by the courts to the closest scrutiny. See generally Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). This principle has been expressed by the Supreme Court in a variety of ways. To justify imposition <->f a prior restraint, the activity restrained must pose a clear and present danger, or a serious or imminent threat tó a protected competing interest. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). A system of prior restraints of expression bears a heavy presumption ¿gainst its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Southeastern Promotions, Ltd. v. Conrad, supra. Hence, the government carries a heavy burden of showing a justification for its imposition. Organization for a Better Austin v. Keefe, 402 U.S. 415," }, { "docid": "7313170", "title": "", "text": "§ 3531.9 (1984). The rule against third party standing is subject to several well-established exceptions. See id. Under the present procedural posture of this case, none of those exceptions apply. Accordingly, we conclude that the petitioners lack standing to assert the constitutional rights of nonparty media organizations. IV FREEDOM OF SPEECH A. The Appropriate Legal Standard The petitioners contend that the district court’s order is a prior restraint on their first amendment right to free speech. We agree that the district court’s order is properly characterized as a prior restraint. See M. Nimmer, supra, § 4.03. Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints. See id. § 4.04; L. Tribe, American Constitutional Law § 12-32 (1978). Accordingly, the district court’s order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978); see Wood v. Georgia, 370 U.S. 375, 383-85, 82 S.Ct. 1364, 1369-70, 8 L.Ed.2d 569 (1962); (2) the order is narrowly drawn, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 183-84, 89 S.Ct. 347, 352-53, 21 L.Ed.2d 325 (1968); Halkin, 598 F.2d at 193-94; Sherman, 581 F.2d at 1361; and (3) less restrictive alternatives are not available, Nebraska Press Association, 427 U.S. at 563, 96 S.Ct. at 2804; CBS, 729 F.2d at 1182-83. We note that the district court’s order applies only to trial participants. The Supreme Court has suggested that it is appropriate to impose greater restrictions on the free speech rights of trial participants than on the rights of nonparticipants. Sheppard v. Maxwell, 384 U.S. 333, 360-63, 86 S.Ct. 1507, 1521-23, 16 L.Ed.2d 600 (1966); see Nebraska Press Association, 427 U.S. at 564, 96 S.Ct. at 2805. The case for restraints on trial participants is especially strong with respect to attorneys. Justice Brennan analyzed the role of attorneys in this context as follows: As officers of the court, court personnel and attorneys have a" }, { "docid": "6201213", "title": "", "text": "days of proceedings are found in Volume 2 of the Appendix: January 9 (pp. 361-98); January 15 (pp. 399-464); January 17 (pp. 456-599); January 18 (pp. 600-736); February 6 (pp. 737-772) and March 9 (pp. 773-817). See Landmark Communications, Inc. v. Virginia, 435 U.S. [829] at 844-45, 98 S.Ct. 1535; [at 1544, 56 L.Ed.2d 1] Wood v. Georgia, 370 U.S. [375] at 384-85, 82 S.Ct. 1364; [at 1369-1370, 8 L.Ed.2d 569] Bridges v. California, 314 U.S. [252] at 262-63, 62 S.Ct. 190; [at 193 194, 8 L.Ed.2d 569] Chicago Council of Lawyers v. Bauer, 522 F.2d [242] at 249; cf. Nebraska Press Ass’n, v. Stuart, 427 U.S. [539] at 562, 96 S.Ct. 2791 [at 2804, 49 L.Ed.2d 683]. “An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pinpointed objective permitted by the constitutional mandate . . .. ” Carroll v. President and Commissioners of Princess Anne, 393 U.S. [175] at 183, 89 S.Ct. [347] at 353 [21 L.Ed.2d 325], See also Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800 [1811], 40 L.Ed.2d 224 (1974). Nebraska Press Ass’n, 427 U.S. at 563, 96 S.Ct. 2791 [at 2804]; Carroll, 393 U.S. at 183-84, 89 S.Ct. 347 [at 353]; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247 [252], 5 L.Ed.2d 231 (1960)." } ]

[ { "docid": "17588411", "title": "", "text": "JOHN W. PECK, Circuit Judge. This class action was brought on behalf of individuals in Kentucky, who began receiving Aid to the Permanently and Totally Disabled (APTD) benefits after July 1, 1973, but before December 31, 1973, and were initially determined to be ineligible for benefits under the federal Supplemental Security Income (SSI) program, which supplanted the Kentucky APTD in January, 1974. In October, 1972, Congress repealed the categorical assistance program of federal grants to state administered disability assistance programs, and in its stead established the SSI program, which the federal government would administer and under which it would assume the burden of providing benefits to those persons defined as disabled by the Act. 42 U.S.C. § 1381 et seq. As originally enacted, the SSI program included a “grandfather clause,” whereby persons receiving disability benefits as of December, 1973, under a state plan in effect in October, 1972, would automatically be considered disabled for purposes of the SSI program. Pub.L.No.92-603. On December 31, 1973, Congress amended the grandfather clause to require that in addition to receiving benefits in December, 1973, an individual must have received benefits for one month prior to July 1,1973. The purpose of this “rollback” provision was to prevent states from transferring their welfare recipients onto the disability rolls in anticipation of the federal takeover. The consequence of this amendment was that all persons who became qualified under a state plan subsequent to July 1 had to meet federal standards of disability in order to be- eligible under the SSI program. Because of the harsh result and administrative difficulties which would have ensued had the Secretary simply not paid any disability benefits to these so-called “rollback” recipients, the Secretary ordered that benefits be paid to all such persons for up to three months upon a basis of presumptive disability until a determination of eligibility was made. The Secretary relied upon 42 U.S.C. § 1383(a)(4)(B) as authority for his action. In March of 1974, Congress enacted Pub.L.No.93-256, which codified the Secretary’s action and authorized payment of presumptive benefits until the end of 1974, pending an initial determination of" } ]

[ { "docid": "11184908", "title": "", "text": "WEBSTER, Circuit Judge. This is a class action brought on behalf of individuals in Missouri who began receiving Aid to the Permanently and Totally Disabled (PTD) benefits from the State of Missouri after July 1, 1973, but before December 31, 1973, and were thereafter initially determined to be ineligible for benefits under the federal Supplemental Security Income for Aged, Blind and Disabled (SSI) program, which supplanted the Missouri PTD program in January, 1974. The District Court entered both preliminary and permanent injunctive relief enjoining the Secretary of Health, Education, and Welfare from withholding benefits from the individual plaintiff and the members of the class until they were given notice of and an opportunity for an evidentiary hearing pri- or to any termination of such benefits. The District Court, however, refused to order the defendant to make retroactive payments of benefits to the individual plaintiff or members of the class. Both plaintiff and defendant appeal. For the reasons stated below, we affirm the judgment of the District Court. A review of the history of the state PTD and federal SSI programs is necessary for a proper evaluation of the various claims in this case. In October, 1972, Congress repealed the categorical assistance program of federal grants to state administered disability assistance programs for the aged, blind, and disabled (Title XIV of the Social Security Act). Pub.L.No.92-603, § 303 (Oct. 30, 1972). In its place, Congress established, in Title XVI of the Social Security Act, a new income maintenance program, effective as of January 1,1974, which replaced the state administered programs with the federal SSI program establishing uniform eligibility criteria. Pub.L.No. 92-603, § 301. Under the SSI program, the federal government was to administer the program and was to assume the burden of providing benefits to those persons who were disabled as defined by the Act. As originally enacted, the SSI program provided that a person found permanently and totally disabled under an approved state plan in effect in October, 1972, would automatically be considered disabled for purposes of the SSI program if he received state aid during December, 1973, and remained" }, { "docid": "11750521", "title": "", "text": "of the claimant remains unchanged). I find the Patti decision to be consistent with my holding in Shaw and the decision of the First Circuit in Miranda. Assuming that a valid initial determination of disability was made by the Secretary in regard to Mrs. Musgrove, she is entitled to a presumption that her disability still exists, although the burden is still on her to prove her case: All the presumption does is impose on the Secretary a burden to come forward with evidence that her condition has changed. Whether that burden has been met is a judgment to be made initially by the Secretary, and that judgment cannot be overturned on appeal if it meets the “substantial evidence” standard. But where . . . there is essentially no evidence to support a conclusion that the claimant’s condition has changed, the substantial evidence test has not been met. Patti, supra at 587. This determination as to the appropriate standard of law to be applied in cessation cases does not, however, resolve the dispute before me. Because of the circumstances surrounding Mrs. Musgrove’s entry into the SSI program, an issue is raised as to whether there was, in fact, an initial determination by the Secretary of Mrs. Musgrove’s disability. Mrs. Musgrove was officially put on the Pennsylvania state disability rolls in late 1973. At the inception of the federal SSI program in January 1974, Mrs. Musgrove was transferred to the federal SSI disability rolls as a result of a one-time transfer of persons disabled under state programs to SSI. A brief review of the legislative history of the SSI program and this one-time transfer under which individuals like Mrs. Musgrove became SSI recipients provides necessary background. In October 1972, Congress repealed the categorical assistance program which had provided federal grants to state-administered disability programs. Finnegan v. Matthews, 641 F.2d 1340, 1342 (9th Cir.1981); 42 U.S.C. § 1351-55, Pub.L. No. 92-603, 86 Stat. 1484 § 303 (repealed October 30, 1972). At the same time Congress provided for a program entitled Supplemental Security Income for Aged, Blind and Disabled (SSI), in which the federal" }, { "docid": "11750523", "title": "", "text": "government assumed the burden of providing benefits directly to certain disabled individuals and established uniform eligibility criteria. The SSI program became effective in January 1974. 42 U.S.C. §§ 1381-83. In its original form, the SSI program included a “grandfather clause,” which provided that persons who, in December 1973, were receiving benefits under a state plan which had been in effect as of October 1972 would automatically be considered disabled for purposes of the SSI program. Pub.L. No. 92-603; Finnegan, supra at 1342; Tatum v. Mathews, 541 F.2d 161, 163 (6th Cir.1976); Ryan v. Shea, 525 F.2d 268, 270 (10th Cir.1975). On December 31, 1973, one day before the SSI program was to go into effect, the grandfather clause was amended in response to the perceived “wholesale” number of persons who had been entered onto state disability rolls in anticipation of the automatic transfer to SSI rolls. The amendment or so-called “roll-back” provision required that, in order to qualify for automatic disability status under SSI, an applicant had to have received benefits under a state plan for at least one month before July 1, 1973, as well as in December 1973, and been continuously disabled under the state plan. Pub.L. No. 93-233, § 9 (December 31, 1973); Ryan, supra at 271; Johnson v. Mathews, 539 F.2d 1111, 1115 (8th Cir.1976). In other words, after this amendment, individuals who were receiving state disability benefits as of December 1973 were conclusively presumed to meet federal standards only if they had also been receiving those benefit for at least one month prior to July 1973 and remained continuously disabled. Ryan, supra at 271; Johnson, supra at 1114. Thus, Mrs. Mus-grove, who was admitted to the state disability program in late 1973 would not be automatically entitled to SSI benefits as a “grandfatheree” (“grandmotheree”?) and would not be conclusively presumed to be disabled under SSL The Secretary was then faced with the disposition of those individuals like Mrs. Musgrove, termed “rollback cases,” who had been on state disability rolls as of December 1973 but not before July 1, 1973. In order to avoid a harsh" }, { "docid": "11184910", "title": "", "text": "continuously disabled. Pub.L.No. 92-603, § 301. On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L.No. 92-603 to require that in addition to receiving benefits during December, 1973, an individual must have received benefits for one month prior to July, 1973, in order to qualify under the “grandfather” clause. Pub.L. No.93-233, § 9 (Dec. 31, 1973); see 42 U.S.C. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R.Rep.No.93-871, 2 U.S. Code Cong. & Admin.News, p. 2808 (1974). See also H.R.Rep.No.93-627, 2 U.S.Code Cong. & Admin.News, pp. 3177, 3183 (1973). Thus, as of January 1, 1974, the federal government had for all practical purposes taken over the payments of benefits to the disabled needy. Those individuals who were receiving Missouri PTD benefits as of December 31, 1973, and who had also received such benefits for at least one month prior to July, 1973, were conclusively presumed to meet the federal standards of disability and began receiving SSI benefits. The plaintiff and members of the class in this case are individuals who were receiving state PTD benefits in December, 1973, but who had commenced receiving those benefits after July 1, 1973, and were thus not automatically qualified under the federal program. These persons had to meet the federal standard of disability in order to receive benefits under the SSI program. The last minute amendment to the “grandfather” clause presented the Secretary with the problem of dealing with those individuals who had commenced receiving benefits under a state plan between July and December, 1973, but were facing termination of benefits. Although no statutory provisions existed as of January 1, 1974, to pay benefits to these “rollback” cases as such, the Secretary used a statutory provision, ostensibly aimed at initial applicants who were found to be presumptively disabled, to continue payments to persons who had not yet been initially determined to be" }, { "docid": "23710561", "title": "", "text": "same time, Congress established a program identified as Supplemental Security Income for Aged, Blind and Disabled (“SSI”), which became effective in January 1974. 42 U.S. C.A. §§ 1381-1383 (West 1974). Under the federally-administered SSI program, the federal government assumed the burden of providing benefits directly to those needy people who were “disabled” as defined in the Act. 42 U.S.C.A. § 1381 (West 1974). As part of the definition of “disability” under the Act, Congress included the following “grandfather” clause: [A]n individual shall also be considered to be disabled for purposes of this sub-chapter if he is permanently and totally disabled as defined under a State Plan approved under subchapter XIV or XVI of this chapter as in effect for October 1972 and received aid under such plan (on the basis of disability) for December 1973 (and for at least one month prior to July 1973), so long as he is continuously disabled . as so defined. 42 U.S.C.A. § 1382c(a)(3)(E) (Supp.1980). The requirement that the individual be disabled for at least one month prior to July 1973 was introduced as a last minute amendment to the original provision. The purpose of this “rollback” amendment was to prevent states from transferring their welfare recipients onto the disability rolls in anticipation of the federal takeover. Those individuals who received disability aid under a state plan during December 1973 but who had not received aid under such plan for at least one month prior to July 1973— known as “rollbacks” — were subsequently classified, pursuant to agency regulations, as “presumptively disabled” and thus were eligible to receive SSI benefits until an initial determination of eligibility could be made. See 42 U.S.C.A. § 1383(a)(4)(B) (Supp.1980); 20 C.F.R. § 416.954. In contrast, the availability of federal disability benefits to those individuals who had received aid under a state plan for at least one month prior to July 1973 — commonly known as “grandfatherees” — is controlled solely by the operation of the statutory grandfather clause. II. FINNEGAN’S ACHE On November 16, 1972 appellant Finnegan’s application for state disability was approved by the state of Washington" }, { "docid": "4262998", "title": "", "text": "by this controversy in the following order: (1) the legislative and administrative history of the SSI program; (2) the factual basis for plaintiffs’ claims; (3) the merits of the case under the due process clause of the Fifth Amendment; (4) the statutory authority to make payments after December 31, 1974; and (5) the form and effect of the final injunction we will enter. 1. The legislative and administrative history of the SSI program. Because the subject matter of this action has been frequently litigated in the District Courts, we shall limit our discussion to a broad outline of the SSI program. It was enacted 'by Congress in October of 1972, Pub.L. 92-603, 86 Stat. 1465, 42 U.S.C. § 1381 et seq., to replace inter alia, the joint state-federal program known as Aid to the Permanently and Totally Disabled (APTD). The effective date of the SSI legislation was January 1, 1974. The program initially provided that persons who were permanently and totally disabled, as defined under any state plan in effect during the month of October 1972, and who were receiving aid under such plan on the basis of disability during the month of December, 1973, would automatically qualify as disabled persons who were eligible to receive SSI benefits. On December 31, 1973, however, one day before the program was to go into effect, Congress amended the statute by adding to this “grandfather” provision the additional requirement that a potential recipient must have received disability payments under a state plan for at least one month prior to July of 1978, Pub.L. 93-233, 87 Stat. 957. This new proviso, codified in 42 U.S.C. § 1382c (a)(3)(E), had the effect of requiring a disability determination with respect to those persons who had received state aid during the month of December of 1973, but not for any month prior to July of 1973, a class of persons which would automatically have been considered as eligible for disability payments under the old “grandfather” provision. The SSI program, however, was to become effective the day following the passage of Pub.L. 93-233; hence, the Social Security Administration" }, { "docid": "2388172", "title": "", "text": "for benefits. The functions of the federally supported and state administered program, AABD (42 U.S.C. § 1351 et seq.), were transferred to the SSI program which was financed, administered and operated by the Social Security Administration of Health, Education and Welfare (H.E.W.) 42 U.S.C. § 1381 et seq. In addition under the new legislation, the state retained the right to offer higher benefits to its citizens by a written agreement executed between Rhode Island and the Secretary of H.E.W. On November 30, 1973 the federal government would also administer these state supplementary payments. P.L. 92-603, § 1616; 42 U.S.C. § 1382e. See, P.L. 93-66, § 212. See, Stipulation of Facts, Exhibit D. Subsequently, a number of amendments to P.L. 92-603 were passed by Congress. Their sequence and content offer some assistance in the determination of how Congress intended persons in plaintiffs’ class to be treated. In July of 1973, the Congress amended the provisions of the SSI program (P.L. 92-603) and provided that an individual would qualify for benefits ur ier SSI, “ . . . if . . . for the month of December 1973 such individual was a recipient of aid or assistance under a State plan approved under title I, X, XIV, or XVI of the Social Security Act, ...” P.L. 93-66, § 211(b) Thus, under this amendment any person who in December 1973 was receiving AABD benefits (which was a state plan approved under title XIV of the Social Security Act, 42 U.S.C. § 1351 et seq.) would be automatically eligible for SSI benefits in January of 1974. This amendment providing for automatic eligibility was called the “grandfather” provision. On December 30, 1973, two days before the SSI program was to go into effect, Congress amended the “grandfather” provision by passing P.L. 93-233. P.L. 93-233, § 9 provided that: “an individual shall ... be considered to be disabled for the purposes of this title if he is permanently and totally disabled as defined under a State plan approved under title XIV or XVI of this chapter as in effect for October 1972 and received aid under" }, { "docid": "11787543", "title": "", "text": "a determined level qualified for these federal benefits under SSL In the 1972 legislation, Congress provided that any person who was permanently and totally disabled as defined in a state plan and who had received benefits under that plan in December 1973 would automatically qualify under SSI. On December 31, 1973, Congress suddenly amended this “grandfather” provision in the 1972 enactment by passing Public Law 93-233 one day before the new program was to become effective. The amendment permitted benefits to be paid without further inquiry only to those who had qualified under a state plan and who had received benefits for at least one month prior to July 1973. Therefore, those persons who first received state benefits after July 1, 1973 did not automatically and unconditionally qualify for conversion to SSI; instead, it was required that a determination of disability be made as to them by the Social Security Administration pursuant to new SSI standards. 42 U.S.C. § 1382c(a) (3) (E). Plaintiffs and their class fall within this category of persons who did not receive state benefits until after July 1, 1973. This last minute change in a program which became effective on January 1, 1974 suddenly placed an almost impossible burden on the Social Security Administration. That agency quite understandably could not make a new determination as to eligibility for each of the thousands of such persons across the country before the monthy payments were due. Therefore, the Secretary invoked a provision included in Public Law 92-603, 42 U.S.C. § 1383(a)(4)(B), which permitted him to continue benefits up to three months for persons who were “presumptively disabled”. Those persons, like plaintiffs, who had started to receive benefits from the State after July 1, 1973 were thus initially deemed by the Secretary to be “presumptively disabled” and entitled to SSI benefits. Thereafter, Congress, in Public Law 93-256, effective March 28, 1974, ratified and confirmed this exercise of administrative authority by the Secretary and further authorized him to continue such payments to those presumptively disabled throughout 1974. Payments would cease, however, one month after the Secretary determined that an individual" }, { "docid": "4263014", "title": "", "text": "be the beneficiaries. Indeed, the House Report to Pub.L. 92-603 clearly states that SSI was intended to replace existing welfare programs for the disabled: * * * [T]he bill would substantially improve the effectiveness of the adult assistance programs under the Social Security Act by providing— (1) for replacing the three present State-administered programs of assistance to the aged, blind, and disabled with one combined adult assistance program which would be Federally administered by the Social Security Administration and would have nationally uniform requirements for such eligibility factors as the level and type of resources allowed and the degree of disability or blindness; (2) that each aged, blind, or disabled adult would receive assistance sufficient to bring his total monthly income up to [certain basic benefit levels]; and (3) the cost of maintaining these basic benefit levels for the aged, blind, and disabled will be borne entirely by the Federal Government. H.R. 92-231, 92d Cong.2d Sess., 3 U.S. Code Cong. & Admin.News 4989, 4992 (1972) (emphasis added). Prior to the amendment of December 31, 1973, § 1382c(a) (3) (A) provided that persons who were receiving aid on the basis of disability under any State plan as of December of 1973 would be defined as disabled for the purposes of SSI. Thus, this provision provided, in essence, that each and every recipient under a state plan in December of that year would automatically begin to receive benefits under SSI for the following month. It is clear from this “grandfather” clause that SSI was intended by Congress as a wholesale replacement for, and continuation of, the former state-federal programs, in that the identity of recipients under the two plans of assistance would be absolute. It was only with respect to future applicants for SSI that the uniform federal criteria were to apply. The substantial identity of APTD and SSI with respect to the category of need and the class of recipients clearly appears from the notices sent during December of 1973, prior to the December 31, 1973 amendments, by both the Commonwealth Department of Public Welfare and the Social Security Administration. The" }, { "docid": "1163725", "title": "", "text": "program which establishes uniform eligibility criteria. H.R.Rep. No. 92-231, 1972 U.S. Code Cong. & Admin.News 4992; see 42 U.S.C.A. § 1381. As originally enacted, the SSI provided that a person found permanently and totally disabled under an approved state plan would automatically be considered disabled for purposes of SSI if he received aid during December 1973 and remained continuously disabled. Pub.L. No. 92-603, § 1614(a)(3)(A) (commonly known as the disability grandfathering clause). On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L. No. 92-603 to require that in addition to receiving benefits during December 1973, an individual must have received benefits for 1 month prior to July 1973. Pub.L. No. 93-233, § 9(2), 42 U.S.C.A. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R. Rep. No. 93-871, 1974 U.S.Code Cong. & Admin.News2808; see S.Rp. No. 553, 93d Cong., 1st Sess. 250 (1973). Thus the plaintiffs, who became eligible for state disability benefits after July 1, 1973, but before December 31, 1973 (rollback cases), are not automatically grandfathered into the SSI program, but must meet the federal definition of disabled in order to qualify for SSI benefits. 42 U.S.C.A. § 1382c(a)(3)(A), (B). - Although no statutory provision existed as of January 1, 1974, to pay benefits to rollback cases as such, the Secretary of Health, Education and Welfare used a statutory provision that was ostensibly aimed at initial applicants who were found to be presumptively disabled to continue payments to rollback cases who had not been initially determined. See 42 U.S.C.A. § 1383(a)(4)(B); 20 C.F. R. § 416.954. Title 42, section 1383(a)(4)(B) provides that before an initial determination of eligibility the Secretary may pay benefits for a period of up to 3 months to those he judges to be presumptively disabled. By regulation, the Secretary classified rollback cases as presumptively disabled. 20 C.F. R. § 416.954. Under this system," }, { "docid": "23710560", "title": "", "text": "GOLDBERG, Circuit Judge: This case presents the novel problem of interpreting a grandfather clause authored by Congress as part of its 1972 rewriting of sections of the Social Security Act (“Act”). Defendant, the Secretary of Health, Education and Welfare (hereinafter “Secretary” or “HEW”), seeks to rely on its own regulations, written after the passage of the Act, to read the prose of congressional Magi as those of legislative Indian givers, and to interpret a wise, fair grandfather clause as a grizzly, old miser. Because we find this Scrooge-like transmogrification of the clause to be inconsistent with its plain meaning and legislative history, with subsequent intimations by the judicial readership, and with the dictates of both policy and common sense, we reject the position of the Secretary. I. PORTRAIT OF A GRANDFATHER: THE CLAUSE In October, 1972, Congress repealed the categorical assistance program (Title XIV of the Social Security Act) which had provided federal grants to state-administered disability assistance programs. 42 U.S.C.A. §§ 1351-1355, Pub.L. No. 92-603, 86 Stat. 1484 § 303 (repealed 1972). At the same time, Congress established a program identified as Supplemental Security Income for Aged, Blind and Disabled (“SSI”), which became effective in January 1974. 42 U.S. C.A. §§ 1381-1383 (West 1974). Under the federally-administered SSI program, the federal government assumed the burden of providing benefits directly to those needy people who were “disabled” as defined in the Act. 42 U.S.C.A. § 1381 (West 1974). As part of the definition of “disability” under the Act, Congress included the following “grandfather” clause: [A]n individual shall also be considered to be disabled for purposes of this sub-chapter if he is permanently and totally disabled as defined under a State Plan approved under subchapter XIV or XVI of this chapter as in effect for October 1972 and received aid under such plan (on the basis of disability) for December 1973 (and for at least one month prior to July 1973), so long as he is continuously disabled . as so defined. 42 U.S.C.A. § 1382c(a)(3)(E) (Supp.1980). The requirement that the individual be disabled for at least one month prior to" }, { "docid": "11750524", "title": "", "text": "for at least one month before July 1, 1973, as well as in December 1973, and been continuously disabled under the state plan. Pub.L. No. 93-233, § 9 (December 31, 1973); Ryan, supra at 271; Johnson v. Mathews, 539 F.2d 1111, 1115 (8th Cir.1976). In other words, after this amendment, individuals who were receiving state disability benefits as of December 1973 were conclusively presumed to meet federal standards only if they had also been receiving those benefit for at least one month prior to July 1973 and remained continuously disabled. Ryan, supra at 271; Johnson, supra at 1114. Thus, Mrs. Mus-grove, who was admitted to the state disability program in late 1973 would not be automatically entitled to SSI benefits as a “grandfatheree” (“grandmotheree”?) and would not be conclusively presumed to be disabled under SSL The Secretary was then faced with the disposition of those individuals like Mrs. Musgrove, termed “rollback cases,” who had been on state disability rolls as of December 1973 but not before July 1, 1973. In order to avoid a harsh result to these individuals, the Secretary utilized a statutory provision, “ostensibly aimed at initial applicants who were found presumptively disabled, to continue payments to persons who had not yet been initially determined to be qualified.” Johnson, supra at 1115; see 42 U.S.C. § 1383(a)(4)(B). By regulation, the Secretary classified rollback cases as presump tively disabled, which permitted them to receive benefits for up to three months until an initial determination of eligibility could be made. See 20 C.F.R. § 416.954. When it became apparent that three months was not a sufficient time within which to process rollback cases and make initial determinations of SSI eligibility, Congress, recognizing that abrupt cessation would be harsh, provided that pending determination of eligibility the Secretary could continue to pay presumptive benefits to rollback cases until the end of 1974. Pub.L. No. 93-256, § 1 (Mar. 28, 1974); Ryan, supra at 271. Under the presumptive disability status of rollback cases, once the Secretary made a determination that an individual was not disabled under SSI standards, benefits ceased immediately, although the" }, { "docid": "11750522", "title": "", "text": "of the circumstances surrounding Mrs. Musgrove’s entry into the SSI program, an issue is raised as to whether there was, in fact, an initial determination by the Secretary of Mrs. Musgrove’s disability. Mrs. Musgrove was officially put on the Pennsylvania state disability rolls in late 1973. At the inception of the federal SSI program in January 1974, Mrs. Musgrove was transferred to the federal SSI disability rolls as a result of a one-time transfer of persons disabled under state programs to SSI. A brief review of the legislative history of the SSI program and this one-time transfer under which individuals like Mrs. Musgrove became SSI recipients provides necessary background. In October 1972, Congress repealed the categorical assistance program which had provided federal grants to state-administered disability programs. Finnegan v. Matthews, 641 F.2d 1340, 1342 (9th Cir.1981); 42 U.S.C. § 1351-55, Pub.L. No. 92-603, 86 Stat. 1484 § 303 (repealed October 30, 1972). At the same time Congress provided for a program entitled Supplemental Security Income for Aged, Blind and Disabled (SSI), in which the federal government assumed the burden of providing benefits directly to certain disabled individuals and established uniform eligibility criteria. The SSI program became effective in January 1974. 42 U.S.C. §§ 1381-83. In its original form, the SSI program included a “grandfather clause,” which provided that persons who, in December 1973, were receiving benefits under a state plan which had been in effect as of October 1972 would automatically be considered disabled for purposes of the SSI program. Pub.L. No. 92-603; Finnegan, supra at 1342; Tatum v. Mathews, 541 F.2d 161, 163 (6th Cir.1976); Ryan v. Shea, 525 F.2d 268, 270 (10th Cir.1975). On December 31, 1973, one day before the SSI program was to go into effect, the grandfather clause was amended in response to the perceived “wholesale” number of persons who had been entered onto state disability rolls in anticipation of the automatic transfer to SSI rolls. The amendment or so-called “roll-back” provision required that, in order to qualify for automatic disability status under SSI, an applicant had to have received benefits under a state plan" }, { "docid": "11787542", "title": "", "text": "ALEXANDER HARVEY, II, District Judge: In this civil action, plaintiffs, on behalf of themselves and a class of individ uals similarly situated, seek injunctive and declaratory relief which would entitle them to continue to receive certain Social Security benefits until determined to be ineligible following adequate notice and a hearing as required by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Named as defendant is the Secretary of the Department of Health, Education and Welfare (HEW). Before January 1, 1974, persons in Maryland who were permanently and totally disabled and whose financial resources fell below a certain level received payments under a joint federal-state program, entitled the Maryland Aid to the Permanently and Totally Disabled (APTD). In October 1972, Congress had passed Public Law 92-603, 42 U.S.C. § 1381 et seq., effective January 1, 1974, which transferred the federally-supported but state-administered program to a new federally-supported program, called Supplemental Security Income (SSI), administered by the Social Security Administration of HEW. Aged, blind or disabled persons with incomes and resources below a determined level qualified for these federal benefits under SSL In the 1972 legislation, Congress provided that any person who was permanently and totally disabled as defined in a state plan and who had received benefits under that plan in December 1973 would automatically qualify under SSI. On December 31, 1973, Congress suddenly amended this “grandfather” provision in the 1972 enactment by passing Public Law 93-233 one day before the new program was to become effective. The amendment permitted benefits to be paid without further inquiry only to those who had qualified under a state plan and who had received benefits for at least one month prior to July 1973. Therefore, those persons who first received state benefits after July 1, 1973 did not automatically and unconditionally qualify for conversion to SSI; instead, it was required that a determination of disability be made as to them by the Social Security Administration pursuant to new SSI standards. 42 U.S.C. § 1382c(a) (3) (E). Plaintiffs and their class fall within this category of persons who did not" }, { "docid": "23710577", "title": "", "text": "error had been committed in this case. . Although there is a dearth of legislative history concerning the proper interpretation of the grandfather clause, the existing history supports the conclusion that Congress did not intend to allow the Secretary to make “initial determinations” of the eligibility of grandfatherees. For example, the report of the House Ways and Means Committee, H.R.Rep. No. 92-231, 92nd Cong., 2nd Sess. (1972) reprinted in U.S.Code Cong. & Ad.News 4989, includes a statement which indicates that that committee thought that grandfatherees would automatically qualify for federal SSI benefits: “In order to facilitate an orderly transitional process, those blind and disabled people who are on the benefit rolls in June 1972 under existing State programs would be considered blind or disabled for purposes of this program.” Id. at 5134. . The only 9th Circuit case on the subject, De Lao v. Califano, 560 F.2d 1384 (9th Cir. 1977) while not shedding a great deal of light on the issue at bar, does indicate an assumption that only rollbacks would be required to meet federal eligibility standards: Under the new SSI program, the federal government assumed most of the burden of providing benefits to those needy persons who were disabled as defined by the Act. As part of the definition of disability, Congress included a “grandfather” clause whereby persons receiving disability benefits as of December, 1973, under a state plan approved under former Title XIV or XVI as in effect for October, 1972, were considered disabled for purposes of the new SSI program. 86 Stat. 1471-72, 42 U.S.C. § 1382c(a)(3)(A) (Supp. 11, 1972). ... As a result, all persons who became qualified under a state plan after July 1, 1973, had to meet the new federal standards of disability to be eligible under the SSI program. Id. at 1386.. . We are mindful of the maxim that a court should give deference to the interpretation of a statute by the agency charged with its administration. Brubaker v. Morton, 500 F.2d 200 (9th Cir. 1974). It is well established, however, that “Reviewing courts are not obliged to stand aside" }, { "docid": "1163724", "title": "", "text": "U.S. C. § 1331 (federal question) does not give the Court jurisdiction because the plaintiffs have failed to demonstrate that more than $10,000 is in controversy. He contests jurisdiction under 28 U.S.C. § 1361 (mandamus) because the plaintiffs are not seeking to compel a clear ministerial duty. Finally, defendant contends that 5 U.S.C. §§ 701-06 (Administrative Procedure Act) is not an independent grant of jurisdiction to the federal district courts. Since it is now clear in this Circuit that the Administrative Procedure Act does provide an independent basis of jurisdiction for claims such as the plaintiffs here allege, it is unnecessary to discuss defendant’s other jurisdictional objections. See Pickus v. United States Board of Parole, 165 U.S.App.D.C. -, 507 F.2d 1107 (1974). II. THE MERITS On October 30, 1972, Congress established the Supplemental Security Income Program (SSI), which is an income maintenance program for the aged, blind and disabled. Pub.L. No. 92-603, 86 Stat. 1329, 42 U.S.C.A. §§ 1381-85. The Act, which became effective on January 1, 1974, replaced state-administered programs with a new federal program which establishes uniform eligibility criteria. H.R.Rep. No. 92-231, 1972 U.S. Code Cong. & Admin.News 4992; see 42 U.S.C.A. § 1381. As originally enacted, the SSI provided that a person found permanently and totally disabled under an approved state plan would automatically be considered disabled for purposes of SSI if he received aid during December 1973 and remained continuously disabled. Pub.L. No. 92-603, § 1614(a)(3)(A) (commonly known as the disability grandfathering clause). On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L. No. 92-603 to require that in addition to receiving benefits during December 1973, an individual must have received benefits for 1 month prior to July 1973. Pub.L. No. 93-233, § 9(2), 42 U.S.C.A. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R. Rep. No. 93-871, 1974 U.S.Code Cong. & Admin.News2808; see" }, { "docid": "11184909", "title": "", "text": "PTD and federal SSI programs is necessary for a proper evaluation of the various claims in this case. In October, 1972, Congress repealed the categorical assistance program of federal grants to state administered disability assistance programs for the aged, blind, and disabled (Title XIV of the Social Security Act). Pub.L.No.92-603, § 303 (Oct. 30, 1972). In its place, Congress established, in Title XVI of the Social Security Act, a new income maintenance program, effective as of January 1,1974, which replaced the state administered programs with the federal SSI program establishing uniform eligibility criteria. Pub.L.No. 92-603, § 301. Under the SSI program, the federal government was to administer the program and was to assume the burden of providing benefits to those persons who were disabled as defined by the Act. As originally enacted, the SSI program provided that a person found permanently and totally disabled under an approved state plan in effect in October, 1972, would automatically be considered disabled for purposes of the SSI program if he received state aid during December, 1973, and remained continuously disabled. Pub.L.No. 92-603, § 301. On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L.No. 92-603 to require that in addition to receiving benefits during December, 1973, an individual must have received benefits for one month prior to July, 1973, in order to qualify under the “grandfather” clause. Pub.L. No.93-233, § 9 (Dec. 31, 1973); see 42 U.S.C. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R.Rep.No.93-871, 2 U.S. Code Cong. & Admin.News, p. 2808 (1974). See also H.R.Rep.No.93-627, 2 U.S.Code Cong. & Admin.News, pp. 3177, 3183 (1973). Thus, as of January 1, 1974, the federal government had for all practical purposes taken over the payments of benefits to the disabled needy. Those individuals who were receiving Missouri PTD benefits as of December 31, 1973, and who had also received such benefits" }, { "docid": "2388173", "title": "", "text": ". if . . . for the month of December 1973 such individual was a recipient of aid or assistance under a State plan approved under title I, X, XIV, or XVI of the Social Security Act, ...” P.L. 93-66, § 211(b) Thus, under this amendment any person who in December 1973 was receiving AABD benefits (which was a state plan approved under title XIV of the Social Security Act, 42 U.S.C. § 1351 et seq.) would be automatically eligible for SSI benefits in January of 1974. This amendment providing for automatic eligibility was called the “grandfather” provision. On December 30, 1973, two days before the SSI program was to go into effect, Congress amended the “grandfather” provision by passing P.L. 93-233. P.L. 93-233, § 9 provided that: “an individual shall ... be considered to be disabled for the purposes of this title if he is permanently and totally disabled as defined under a State plan approved under title XIV or XVI of this chapter as in effect for October 1972 and received aid under such plan (on the basis of disability) for December 1973 (and for at least one month prior to July 1978), so long as he is continuously disabled as so defined.” (emphasis added) Thus, in order to be “grandfathered” into the SSI program an individual had to have received AABD benefits “at least one month prior to July 1973; ” otherwise, the individual would have to establish his or her eligibility for SSI by meeting the definitions in 42 U.S.C. § 1382c (P.L. 92-603, § 1614). As a result of this amendment, those persons who received AABD aid one month prior to July, 1973, would be automatieally eligible for SSI, but those who qualified for AABD on or after July, 1973 were excluded from automatic benefits. The plaintiffs and members of their class were those who fell into the latter category. They received AABD benefits during December 1973 but had not qualified for benefits prior to July 1973. To meet the needs of those in plaintiffs’ class, the Secretary of H.E.W. invoked authority provided to him" }, { "docid": "4262999", "title": "", "text": "1972, and who were receiving aid under such plan on the basis of disability during the month of December, 1973, would automatically qualify as disabled persons who were eligible to receive SSI benefits. On December 31, 1973, however, one day before the program was to go into effect, Congress amended the statute by adding to this “grandfather” provision the additional requirement that a potential recipient must have received disability payments under a state plan for at least one month prior to July of 1978, Pub.L. 93-233, 87 Stat. 957. This new proviso, codified in 42 U.S.C. § 1382c (a)(3)(E), had the effect of requiring a disability determination with respect to those persons who had received state aid during the month of December of 1973, but not for any month prior to July of 1973, a class of persons which would automatically have been considered as eligible for disability payments under the old “grandfather” provision. The SSI program, however, was to become effective the day following the passage of Pub.L. 93-233; hence, the Social Security Administration was unable to make eligibility determinations with respect to these so-called “rollback” individuals before payments were scheduled to begin. Under the circumstances, the agency elected to make payments to all members of the class, pending a determination of eligibility. These payments were purportedly made pursuant to the provisions of 42 U.S.C. § 1383(a)(4)(B), which permitted payments to “presumptively disabled” persons prior to a determination of their eligibility, without subjecting such persons to liability for recoupment of overpayments, should they ultimately be found to be ineligible. Section 1383 (a)(4)(B), however, limited such payments to a three month period which was to expire on March 31, 1974. The agency was unable to complete eligibility determinations by that time; it accordingly asked Congress to extend the period of presumptive disability until December 31, 1974. See H.R. No. 93-871, 93d Cong., 2d Sess., U.S.Code Cong. & Admin.News 1974, p. 2808. Congress agreed, and passed Pub.L. 93-256, 88 Stat. 52 (Mar. 28, 1974), which permitted presumptive disability payments during the entire calendar year of 1974, without liability for repayment if" }, { "docid": "2216297", "title": "", "text": "Act a program identified as Supplemental Security Income for Aged, Blind and Disabled (SSI) which was to become effective in January 1974. Under this program the federal government was to administer the program and it assumed the burden of providing benefits to those needy persons who were disabled as defined in the Act. As a part of the definition of disability, Congress included a “grandfather” clause whereby persons receiving disability benefits from a state program as of December 1973 would be conclusively presumed to meet federal standards. We would note parenthetically that this particular provision suggests that the federal program was in one sense, at least, a continuation of the old federal-state program. In any event, as indicated, in Colorado the state plan was called Aid to the Needy Disabled (AND). Because of the conduct of certain states where persons of doubtful disability status were being switched from state welfare rolls to state disability rolls in anticipation of the federal take-over in January 1974, Congress, on December 31, 1973, modified the aforesaid grandfather clause to provide that in order to qualify for federal payments not only must the individual have received benefits in December 1973, but must also have received such state benefits for at least one month prior to July 1973. 42 U.S.C. § 1382c(a)(3)(E). As indicated, then, on January 1, 1974, the federal government for all practical purposes took over the payments of benefits to the needy disabled. Those individuals who were receiving AND benefits from the State of Colorado as of December 1973, and who had also received AND benefits for at least one month prior to July 1, 1973, were conclusively presumed to meet federal standards and commenced to receive SSI benefits. The instant case is concerned with those individuals who were receiving state AND benefits in December 1973, but who had commenced receiving state AND benefits after July 1973. The last minute amendment to the grandfather clause by Congress on December 31, 1973, caused many problems, not the least of which was the one cast on those who began receiving disability benefits between July 1," } ]

[ { "docid": "22671672", "title": "", "text": "suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant’s time and money are diverted from alternative uses — productive or otherwise — to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff’s allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or 'a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’ Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S. 180, 185 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.” Id., at 329. B The Blonder-Tongue case involved defensive use of collateral estoppel — a plaintiff was estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant. The present case, by contrast, involves offensive use of collateral estoppel — a plaintiff is seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. In both the offensive and defensive use situations, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless, several reasons have been advanced why the two situations should be treated differently. First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely “switching adversaries.” Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d, at 813, 122 P. 2d, at 895. Thus defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the" } ]

[ { "docid": "19289822", "title": "", "text": "the prior adjudication resulted in a judgment on the merits; 3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior lawsuit; and 4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the previous suit. Swapshire, 865 F.2d at 951, citing Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713 (Mo.1979). The elements of collateral estoppel are satisfied in the present case regarding the support nature of the award. The issues in this adversary action as to division of marital property and debts, and determination of awards in the nature of support, are the same as those comprehensively and thoroughly litigated throughout the Utah court system by these same parties. Plaintiff presented credible testimony and evidence before this court that the exhibits presented and accepted into evidence in this proceeding were used before the courts in Utah to determine the support issue. The decision by the District Court of Wasatch County, Utah on retrial, which was a decision on the merits, makes clear that the obligations of Debtor to Plaintiff were for her support. Debtor had a full and fair opportunity to litigate all the issues in the Utah state courts, and in fact has availed himself of the opportunities to engage in extensive litigation in Utah. Even without the benefit of the doctrine of collateral estoppel, this court’s ruling in favor of Plaintiff and against Debtor would be the same. The court has considered the numerous factors set forth in In re Soval, 71 B.R. 690, 692 (Bankr.E.D.Mo.1987), in determining the dischargeability under § 523(a)(5) of the debt owed Plaintiff by Debtor. Plaintiff has met the burden of proof under the Soval analysis to show that the obligations ordered by the Utah court to be paid by Debtor to Plaintiff or for her benefit were intended to have a support function and are, therefore, nondischargeable obligations under § 523(a)(5) of the Bankruptcy Code. Particularly noteworthy is the fact that Plaintiff has poor earning capacity and is not" }, { "docid": "22232609", "title": "", "text": "issue, other circuits have uniformly rejected the suggestion that an NLRB decision that did not result from an adjudicatory hearing should be given preclusive effect. In Ware-housemen’s Union Local No. 206 v. Continental Can Co., 821 F.2d 1348 (9th Cir.1987), the court held that “ ‘the NLRB’s refusal to issue a complaint does not act as res judicata ... [and] no collateral estoppel effect attaches to such refusal.’ ” Id. at 1351 (citations omitted). The First Circuit has likewise held that “the Regional Director’s refusal to issue a complaint does not collaterally estop the charging party from litigating the matter in a later suit under section 301.” Courier-Citizen Co. v. Boston Electrotypers Union No. 11, 702 F.2d 273, 277 n. 6 (1st Cir.1983). The reasoning implicit in certain related Sixth Circuit opinions, moreover, likewise dictates that no preclusion attaches. This court has reasoned that “a factual determination by the NLRB in an action under the NLRA may preclude a federal court, hearing a case under the LMRDA, from considering renewed dispute about that fact.” Olchowik v. Sheet Metal Workers’ Int’l Ass’n, 875 F.2d 555, 557 (6th Cir.1989). The Olchowik court, however, then proceeded to conclude that an earlier factual determination by the NLRB did not have preclusive effect in its case, because of “the classic test for issue preclusion.” Id. That test can be broken down into three -steps: 1) is the issue identical to that actually decided by another decisionmaker? 2) was the issue necessary to the earli.er judgment? and 3) did the party against whom preclusion would operate have a full and fair opportunity to litigate the issue? Id. None of these three steps is satisfied in a ease where the NLRB simply refused to issue a complaint after an administrative investigation. Therefore, no preclusive effect should be given to the NLRB documents pointed to by the defendant here. The defendant’s alternative argument for why the NLRB decision should have been considered by the jury is governed by the Federal Rules of Evidence. Only relevant evidence may be admitted at trial. Fed.R.Evid. 402. To be relevant, evidence need" }, { "docid": "17510559", "title": "", "text": "1328, 84 L.Ed.2d 274 (1985). Instead, in a nondischargeability proceeding in a bankruptcy court must, pursuant to the full faith and credit principles of 28 U.S.C. § 1738 , give the same issue preclusion effect to a state court judgment as it would be given under that state’s law. Id. Accordingly, in this case, the Court will apply Ohio’s law on collateral estoppel since all the events giving rise to the Plaintiffs Complaint transpired in Ohio. Under Ohio law, the doctrine of collateral estoppel is comprised of four elements: (1) A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (2) The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; (3) The issue in the present suit must have been identical to the issue involved in the prior suit; and (4) The party against whom estoppel is sought was a party or in privity with a party to the prior action. In re Wilcox, 229 B.R. at 416-17. With respect to these requirements, the Court, given the Debtor’s full participation in his divorce proceeding, finds that elements one and four as set forth above have been met. Similarly, considering that specific findings of fact were contained in the state court order regarding the grounds giving rise to the Debtor’s marital debt to the Plaintiff, the Court also finds that the second element of the collateral estoppel test has been met. Accordingly, the Court’s remaining analysis will focus solely on the applicability of the third requirement of the collateral estoppel doctrine. The third prong of Ohio’s collateral estoppel test requires that the issue involved in the present litigation must have been identical to the issue involved in the prior suit. In a dischargeability action this means ascertaining whether the factual issues in the state court proceeding were determined “using standards identical to those in the dischargeability proceedings .... ” Spilman v. Harley, 656 F.2d 224, 226 (1981); see also Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654," }, { "docid": "19778539", "title": "", "text": "preclusion is asserted was a party or in privity with a party to the prior action ... The Supreme Court’s grant of “broad discretion” to trial courts provides those courts the authority to take potential shortcomings or indices of unfairness into account when considering whether to apply offensive nonmutual issue preclusion, even where the above-listed standard prerequisites are met ... The potential shortcomings or indices of unfairness identified by the Court ■ include whether (1) the plaintiff had the incentive to adopt a wait and see attitude in the hope that the first action by another plaintiff would result in a favorable judgment which might then be used against the losing defendant; (2) the defendant had the incentive to defend the first suit with full vigor, especially when future suits are not foreseeable; (3) one or more judgments entered before the one invoked as preclusive are inconsistent with the latter or each other, suggesting that reliance on a single adverse judgment would be unfair; and, (4) the defendant might be afforded procedural opportunities in the later action that were unavailable in the first and that could readily cause a different result. See Syverson v. Int’l Business Machines Corp., 472 F.3d 1072, 1078-79 (9th Cir. 2007). Plaintiff has the burden to prove that all of the elements to establish offensive nonmutual issue preclusion have been satisfied. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050-51 (9th Cir.2008). Courts have recognized that where offensive nonmutual issue preclusion is being urged, “fairness gains special importance,” and applicability of the doctrine in any given case is “detailed, difficult, and potentially dangerous.” Jack Faucett Associates, Inc. v. American Tel. and Tel. Co., 744 F.2d 118, 124-25 (D.C.Cir.1984). District courts have broad discretion in deciding whether to apply offensive nonmutual collateral estoppel, and a decision not to apply it may only be reversed if the District Court abuses that discretion. See id.; see also Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir.2003). Every Court That Has Been Asked to Apply Offensive Nonmutual Issue Preclusion Pertaining to the DOJ Case" }, { "docid": "9432146", "title": "", "text": "judgment.’ ” Corzin v. Fordu (In re Fordu), 209 B.R. 854, 862 (6th Cir. BAP 1997) (quoting Shelar v. Shelar, 910 F.Supp. 1307, 1312 (N.D.Ohio 1995)). The Sixth Circuit has held that the application of collateral estoppel in a nondischargeability action depends upon whether the applicable state law would give collateral estoppel effect to the judgment. Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315 (6th Cir.1997). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). Ed Schory & Sons, Inc. v. Francis (In re Francis), 226 B.R. 385, 388 (6th Cir. BAP 1998). Both Sarff and Spring Works were parties in the state court action and it was fully litigated. Neither party has asserted that any of the magistrate’s factual findings or conclusions of law were not necessary to the state court judgment. The bankruptcy court properly determined that it was precluded from relitigating any of the facts and conclusions of law involved in the state court judgment to the extent that they are identical in a dischargeability proceeding. Section 523(a)(6) provides that a debtor is not discharged from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” The Supreme Court has held that a debt is nondischargeable under § 523(a)(6) if it results from an act with “intent to cause injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). The" }, { "docid": "5721369", "title": "", "text": "Judge Greene’s ruling on this point. We therefore hold that, in light of this inconsistent determination, the district court abused its discretion in granting plaintiffs’ motion for offensive estoppel. The district court’s analysis of this issue is, by its own admission, brief. “The short answer to the argument is that those ‘decisions’ are neither the final judgments contemplated by the rule of collateral estoppel nor are they ‘inconsistent’ with either the ultimate facts or the law of Litton.” Larkin General Hospital v. AT & T, 566 F.Supp. at 300. We disagree with each component of the district court’s conclusion regarding Judge Greene’s decision. Underlying the inconsistent determination exception to the doctrine of offensive estoppel is a notion of confidence. The Restatement clearly articulates this rationale: f. Inconsistent prior determinations. Giving a prior determination of an issue conclusive effect in subsequent litigation is justified not merely as avoiding further costs of litigation but also by underlying confidence that the result reached is substantially correct. Where a determination relied on as preclusive is itself inconsistent with some other adjudication of the same issue, that confidence is generally unwarranted. The inference, rather, is that the outcomes may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence. That such a doubtful determination has been given effect in the action in which it was reached does not require that it be given effect against the party in litigation against another adversary. Restatement (Second) of Judgments § 29 comment f, at 295. See also Offensive Collateral Estoppel in Asbestos Litigation: Hardy v. Johns-Manville Sales Corp., 15 Conn.L.J. 247, 265 (1983) (“Collateral estoppel is, in part, a reflection of confidence in the determination of a prior action. Where another court reaches an inconsistent determination, the confidence in the primary case is undermined.”). Significantly, there is no mention of “finality”. The only requirement is that the inconsistent determination undermines the court’s confidence in the correctness of the prior decision. Contrary to Jack Faucett’s argument, Parklane Hosiery does not hold" }, { "docid": "994005", "title": "", "text": "or law, necessary to the judgment, that have already been decided between the same parties. See Wagner v. Schulte (In re Schulte), 385 B.R. 181, 188 (Bankr. S.D. Ohio 2008). And “[t]he doctrine of collateral estoppel applies in dischargeability actions under 11 U.S.C. § 523(a).” Rally Hill Prods., Inc. v. Bursack (In re Bursack), 65 F.3d 51, 53 (6th Cir. 1995) (citing Grogan v. Garner, 498 U.S. 279, 284 n.11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“We now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”)). “Bankruptcy courts’ exclusive jurisdiction over dis-chargeability issues does not alter this rule.” Id. at 53. Indeed, the fact “that Congress intended bankruptcy courts to determine [issues of dischargeability] does not require the bankruptcy court to redetermine all the underlying facts.” Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981). Federal courts must give “the same full faith and credit” to a state court judgment as the judgment would be accorded under the laws of the state in which it was entered. 28 U.S.C. § 1738; see also Fordu, 201 F.3d at 703. Thus, a federal court “faced with the question of whether to give full faith and credit to a state court ... judgment [must] ‘consider first the law of the State in which the judgment was rendered to determine its preclusive effect.’ ” Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315, 317 (6th Cir. 1997) (quoting Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S., 373, 375, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)). Here, that is Ohio law. Courts in Ohio give preclusive effect to prior judgments if: 1) [There is a] final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2) The issue [was] actually and directly litigated in the prior suit and [was] necessary to the final judgment; 3) The issue in the present suit [is] identical to the issue in the prior suit; [and] 4) The party against whom estoppel is sought was a party or" }, { "docid": "3567823", "title": "", "text": "See id. at 331-32, 99 S.Ct. 645. In sum, the doctrine of offensive collateral estoppel or offensive issue preclusion may be used cautiously to preclude a defendant from relitigating a fact actually found against the defendant in prior litigation when the fact was critical and necessary to the judgment in the prior litigation, so long as the plaintiff using the fact could not have easily joined the prior litigation and application of the doctrine would not be unfair to the defendant. The caution that is required in application of offensive collateral estoppel counsels that the criteria for foreclosing a defendant from relitigating an issue or fact be applied strictly. See, e.g., Jack Faucett Assocs. v. AT & T, 744 F.2d 118, 124 (D.C.Cir.1984) (“The doctrine [of offensive collateral estoppel] is detailed, difficult, and potentially dangerous”). The single criterion at issue in this appeal is whether the district court correctly applied the requirement that facts subject to collateral estoppel be “critical and necessary” to the judgment in the prior litigation. While the district court correctly stated this criterion, it interpreted and applied it to foreclose relitigation of any fact that was “supportive of’ the prior judgment. We believe that this interpretation changes the criterion, rendering it too broad to assure fairness in the application of the doctrine. “Supportive of’ is a term substantially more inclusive than the stated criterion of “critical and necessary.” Tellingly, in describing the scope of the “critical and necessary” criterion, we have used the alternative word “essential.” See, e.g., Polk, 782 F.2d at 1201 (“necessary, material, and essential”); C.B. Marchant, 756 F.2d at 319 (“necessary and essential”). And all of the terms that we have used — critical, necessary, essential, and material — are words of limitation. See Webster’s Third New International Dictionary 1510-11 (1993) (defining “necessary” to mean logically required, essential, indispensable); Random House Dictionary 1283-84 (2d ed.1987) (defining “necessary” to mean “essential, indispensable, or requisite”). Because a fact that is “supportive of’ a judgment may be consistent with it but not necessary or essential to it, the term “supportive of’ is a broader term than" }, { "docid": "19126421", "title": "", "text": "the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ....” 28 U.S.C.A. § 1738 (2004). Accordingly, “a federal court must give to a state-court judgment the same pre-clusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); see also Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315, 317-18 (6th Cir.1997). The doctrine of collateral es-toppel, also known as issue preclusion, prevents parties from re-litigating issues that have already been resolved by another court. Du Page Forklift Serv., Inc. v. Material Handling Servs., Inc., 195 Ill.2d 71, 253 Ill.Dec. 112, 744 N.E.2d 845, 849 (2001). The doctrine of collateral estoppel applies when a party ... participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. The adjudication of the fact or question in the first cause will, if properly presented, be conclusive of the same question in the later suit, but the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. Nowak v. St. Rita High Sch., 197 Ill.2d 381, 258 Ill.Dec. 782, 757 N.E.2d 471, 477 (2001). Accordingly, “[collateral estoppel applies in bankruptcy dischargeability proceedings, but the bankruptcy court retains exclusive jurisdiction to determine whether a debt is dischargeable.” Caton v. Trudeau (In re Caton), 157 F.3d 1026, 1028 (5th Cir.1998). As the party seeking to invoke collateral estoppel, the Plaintiff bears the burden of proving that it applies. Herbstein v. Bruetman (In re Bruetman), 259 B.R. 649, 660 (Bankr.N.D.Ill.2001). Furthermore, “[t]he effect of a judgment in subsequent litigation is determined by the" }, { "docid": "1281304", "title": "", "text": "malicious. In the alternative, she argues that the evidence adduced at trial requires a finding that the Debtor's conduct was willful and malicious. Ms. Martinez denies that the debt to Ms. Lopez derived from willful and malicious injury. COLLATERAL ESTOPPEL 11 U.S.C. § 523(c) gives bankruptcy courts exclusive jurisdiction to determine the dischargeability of debts under 11 U.S.C. § 523(a)(6). When the issue of malice has not been litigated between the parties in the state court proceedings, the bankruptcy court may make the determination. Williams v. Colonial Discount Company, 207 F.Supp. 362 (N.D.Ga.1962). It is accepted that a bankruptcy court may be precluded from re-litigating an issue that meets the four-part test stated in Klingman v. Levinson, 831 F.2d 1292 (7th Cir.1987): (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) the determination must have been essential to the prior judgment and (4) the party against whom estoppel is invoked must be fully represented in the prior action. However, the elements of a state court action are rarely identical to the burden placed upon a creditor seeking to deny discharge of a debt, especially under 11 U.S.C. § 523(a)(6) where both willfulness and maliciousness must be proven. In re Rudd, 104 B.R. 8 (Bkrtcy N.D.Ind.1987). Under Illinois law it is possible to find a defendant liable for battery without finding the intent necessary for a finding of malice. Cowan v. Insurance Company of North America, 22 Ill.App.3d 883, 318 N.E.2d 315 (1974). Also, a punitive damage award is not conclusive as to a finding of malice by a state court, as punitive damages may be awarded under circumstances where malice is not present. Kelsay v. Motorola, Inc. 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1979). Additionally, in its analysis of the effect of collateral estoppel in bankruptcy cases, the Rudd court observed that collateral estoppel is least likely to bar litigation of issues in bankruptcy courts when the claim of estoppel is based on a default judgment. The court reasoned" }, { "docid": "8404201", "title": "", "text": "state criminal case against him conclusively established that his constitutional rights were violated for the purposes of his § 1983 claim. Alternatively, Moore argues the district court mistakenly analyzed his Fourth Amendment claim under the warrant-arrest doctrine rather than the stop-and-frisk doctrine. A. Collateral Estoppel The district court held Moore could not rely upon the offensive nonmutual collateral estoppel doctrine to establish that Officer Malady violated Moore’s Fourth and Fourteenth Amendment rights. The district court relied upon this court’s factually similar decision in Duncan v. Clements, which requires, among other things, that “the party against whom collateral estoppel is asserted [was] a party or in privity with a party to the prior adjudication” and must “have [had] a full and fair opportunity to litigate the issue in the prior suit.” Duncan, 744 F.2d 48, 51 (8th Cir.1984) (applying Missouri law ). Because “[o]nly the State of Missouri, not [the officer], had an interest in the outcome of the criminal proceeding against Duncan; [the officer’s] personal interests were not at stake.” Id. at 52. We therefore held the officer “did not have a full and fair opportunity to litigate” the issue in the prior proceeding. Id. at 52-53. Moore argues the district court used the wrong elements in its analysis and cites State v. Daniels, 789 S.W.2d 243, 244-45 (Mo.Ct.App.1990) as the proper case to apply. In Daniels, the Missouri intermediate appellate court did not require privity and, instead of the “full and fair opportunity to litigate the issue,” required that “the offensive use of collateral estoppel ... would not be unfair to the” party being estopped. Id. Moore’s reliance on Daniels is misplaced. In Green v. Fred Weber, Inc., 254 S.W.3d 874, 884 (Mo.2008), the Supreme Court of Missouri stated it “follows the ‘narrow use of offensive collateral estoppel’ ... [under which] no party can be bound by a judgment unless she was in privity with the parties to that judgment.” Furthermore, even if Daniels somehow survives Green, the same concerns for fairness to the officer that this court articulated in Duncan apply to whether “the offensive use of collateral" }, { "docid": "21398541", "title": "", "text": "existence of a fiduciary relationship between the parties. II. This Court must give full faith and credit to the prior state judgment. The federal courts employ a variety of doctrines to recognize the validity and effect of prior state judgments, including res judicata, collateral estoppel, judicial estoppel, and the Full Faith and Credit Act. The bankruptcy courts do not apply the doctrine of res judicata (or “claim preclusion”) in dischargeability proceedings since the Supreme Court decided Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). However, the bankruptcy courts can apply the doctrine of collateral estoppel (or “issue preclusion”) to avoid relitigating any grounds for non-dischargeability which were litigated in a prior proceeding. Grogan v. Garner, 498 U.S. 279, 285, n. 11, 111 S.Ct. 654, 658, n. 11, 112 L.Ed.2d 755 (1991); Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981); Rally Hill Prods. v. Bursack (In re Bursack), 65 F.3d 51 (6th Cir.1995); Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315 (6th Cir.1997); Bend v. Eadie (In re Eadie), 51 B.R. 890, 893 (Bankr.E.D.Mich. 1985). In Grogan, the Supreme Court held that the standard of proof on a claim of nondischargeability under § 523(a) is the preponderance of the evidence standard. The Court based this conclusion, in part, on its determination that “application of that stan dard will permit exception from discharge of all fraud claims creditors have successfully reduced to judgment.” Grogan, 498 U.S. at 290, 111 S.Ct. at 661 (emphasis added). The Court expressly stated that collateral estoppel principles apply in discharge proceedings, without discussing the matter further. Id. at 285, n. 11, 111 S.Ct. at 658, n. 11. In recent years, the Supreme Court has issued a series of decisions expanding the analysis that the federal courts must use to determine whether to give a state judgment preclusive effect. Rather than relying solely on the judicial doctrine of collateral estoppel, a federal court must first consider whether the Full Faith and Credit Act requires it to accord the state judgment the same preclusive effect that the judgment would" }, { "docid": "18122616", "title": "", "text": "issues. ‘Finality’ in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” Coleman v. Comm’r of Internal Revenue, 16 F.3d 821, 830 (7th Cir.1994) (citations omitted)). Collateral estoppel relates to issue preclusion, not claim preclusion. The Tax Court’s AgriCal ruling as to the validity of Voyer’s signature was a decision on the merits. The fact that the Agri-Cal parties thereafter settled the case does not change the court’s ruling. The Court sees no reason to require a formal final judgment before applying collateral estoppel. Do Special Circumstances Exist that Make Collateral Estoppel Unfair? — Both parties have identified “fairness” as the fourth requirement for application of collateral estoppel. See Winters, 149 F.3d at 391. This element only applies when there is an offensive use of collateral estoppel. See In re Swate, 99 F.3d 1282, 1290 (5th Cir.1996) (the requirement of fairness is a limitation on offensive collateral estoppel; offensive collateral estoppel arises when a plaintiff seeks to estop a defendant from relitigating issues that the defendant previously litigated and lost against another plaintiff). Neither party has established that this case presents an issue of offensive collateral estoppel. The IRS, which seeks to benefit from the doctrine, is defending against Weiner’s affirmative claim for a refund based on his use offensively of the limitations bar. The Court nevertheless reaches this element in the collateral es-toppel analysis because, in the bigger picture, it is the IRS that claims taxes due from Weiner. Weiner argues that special circumstances make application of collateral es-toppel unfair in this case. Specifically, Weiner argues that fairness dictates that the decision of the Tax Court not be given collateral estoppel effect here because the Tax Court did not have jurisdiction over the statute of limitations issue as it pertains to him individually (because the issue is a nonpartnership item) and because his personal settlement prevented him from participating in or appealing the Tax Court’s exercise of jurisdiction over the limitations issue" }, { "docid": "13341504", "title": "", "text": "Chapter 7 case. Both parties filed their motions for summary judgment in this adversary proceeding pursuant to Fed. R. Bankr. P. 7056, and this Court has reconsidered the motions upon both counsels’ requests. As stated, this proceeding involves a unique question for this Court: Should a bankruptcy court apply collateral estoppel to another bankruptcy court’s default judgment of nondischargeability? A decision depends upon whether the elements of collateral estoppel are sufficiently satisfied in this particular case. It should be noted on a preliminary level that “[¿judgments of bankruptcy courts enjoy the issue preclusive effects of a final judgment by a court of competent jurisdiction.” Lindsey v. Prive Corp., 161 F.3d 886, 890 (5th Cir.1998) (citing Katchen v. handy, 382 U.S. 323, 334, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Burkett v. Shell Oil, 487 F.2d 1308, 1315 (5th Cir.1973)). The preclusive effect of another federal court’s default judgment is a different issue from that presented by default judgments from state courts. “Because the previous judgment in the present case is a federal court judgment, federal standards, rather than state law standards for collateral estoppel, determine whether giving collateral estoppel effect to the [prior default] is appropriate.” Shearer v. Dunkley (In re Dunkley), 221 B.R. 207, 212 (Bankr. N.D.111.1998) (citations omitted); see generally, Honorable Bernice B. Donald & Kenneth J. Cooper, Collateral Estoppel in Section 523(c) Dischargeability Proceedings: When is a Default Judgment Actually Litigated? 12 Bankr. Dev. J. 321, 352 (1996) (concluding that the application of collateral estoppel to a prior federal court default judgment typically will depend upon whether the “actually litigated requirement” for such estoppel has been met). The Sixth Circuit has addressed the issue of whether a bankruptcy court should preclude litigation when a foreign state court has entered a default judgment in Bay Area Factors, Inc. v. Calvert (In re Calvert), 105 F.3d 315 (6th Cir.1997). Calvert, relying upon the “full faith and credit” requirements of 28 U.S.C. § 1738 (1994), held that a bankruptcy court must look to the law of the state which rendered the default judgment to determine whether collateral estoppel applies to" }, { "docid": "20561805", "title": "", "text": "an intentional tort, necessarily causes injury; to be sure, the State Court determined that Mr. White’s conduct caused Ms. Hoewischer injury (i.e., shame, humiliation and embarrassment). Id. And last, there is no just cause or excuse for Mr. White’s conduct because the photographs were of no legitimate public concern. Moreover, the State Court awarded punitive damages in the amount of $100,000 which indicates the State Court determined actual malice existed. Accordingly, this Court finds Mr. White’s conduct to be willful and malicious for purposes of 11 U.S.C. § 523(a)(6). C. Applicability of Collateral Estop-pel to the Judgment “The doctrine of collateral es-toppel, also referred to as issue preclusion,[ ] prevents a party from relitigating issues that were actually litigated in a prior proceeding. The doctrine is based on the efficient use of judicial resources and on a policy of discouraging parties from ignoring actions brought against them.” Gonzalez v. Moffitt (In re Moffitt), 252 B.R. 916, 920 (6th Cir. BAP 2000). “[C]ollateral estoppel principles ... apply in discharge exception proceedings pursuant to § 523(a).” Grogan v. Garner, 498 U.S. 279, 285, n. 11, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991). “The' full faith and credit principles of 28 U.S.C. § 1738 require us to, look to state law to determine whether the Ohio courts would give preclu-sive effect to the judgment in question .... ” Sill v. Sweeney (In re Sweeney), 276 B.R. 186, 189 (6th Cir. BAP 2002) (citing Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 461 (6th Cir.1999)). The Bankruptcy Appellate Panel for the Sixth Circuit has determined that there are four prerequisites to the application of collateral estoppel under Ohio law: 1) A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2) The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; 3) The issue in the present suit must have been identical to the, issue in the prior suit; 4) The party against whom estop-pel is sought was a party" }, { "docid": "14337235", "title": "", "text": "stipulation and agreement entered as a Court Order, for example, can constitute a final adjudication on dischargeability issues. A consent judgment can have collateral estoppel effect on the Bankruptcy Court. Interdynamics, Inc., supra at 96-97 (“A consent decree, although negotiated by the parties is a judicial act. (Citations omitted.) Such a decree possesses the same force with regard to res judicata and collateral estop-pel as a judgment entered after a trial on the merits.”). Kaspar Wire Works, Inc., supra at 539 (Consent decrees have been given res judicata effect in many cases and, where appropriate, may be given conclusive effect as to the issues involved.). American Equipment Corp., supra at 546 (Consent judgments will be given preclu-sive effect and bar a party from relitigat-ing those issues.). In re Bottagaro, supra at 767 (Consent judgments ... represent a final decision on the merits ... where the parties intended the stipulation ... to adjudicate the issues raised. The court properly precluded ... relitigating those issues in a nondischargeability action.). In re Werth, supra at 623 (A stipulated judgment may bar those matters which have been actually litigated.). See, In re Austin, 26 B.R. 753 (Bankr.S.D.Fla. 1983) (Consent judgment can effect collateral estoppel.). The key second Tenth Circuit case controlling collateral estoppel, Matter of Lombard, stands primarily for the proposition that four criteria must be satisfied before collateral estoppel is invoked: (1) [T]he issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Matter of Lombard, supra at 502; In re Werth, supra at 622; In re Mueller, supra at 872. In Lombard, the creditor obtained a pre-petition default judgment which the debtor sought to have discharged in bankruptcy. In a declaratory judgment action initiated by the debtor, the creditor argued that" }, { "docid": "20348338", "title": "", "text": "threshold inquiry the Court must determine that a true conflict exists between the laws of the competing jurisdictions. See GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). Because the parties have not discussed how the law of Sweden compares to the law of the District of Columbia, the court will assume arguendo that there is a true conflict. .Neither the Delphi Defendants nor the plaintiffs advance a point of view on the place where any injury occurred, and the Court acknowledges that the injury, depending on the specific cause of action, may have occurred in either Sweden or the District. Therefore, this factor has no impact on the Court’s analysis and the Court will not discuss it further. . Even if the balance of factors appeared to indicate that Sweden had the greater interest, the Delphi Defendants’ conclusory allegations fail to satisfy their burden of proof. . \"[T]he preclusive effect of federal court litigation is a question of federal law.” Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1171 (D.C.Cir.2003) (citing 17 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4226, at n.10 (2d ed. 1988)). Therefore, federal law controls the application of claim and issue preclusion in this case. . \"The assertion of non-mutual defensive collateral estoppel[],” as well as offensive collateral estoppel, is permitted by District of Columbia law. Bryson v. Gere, 268 F.Supp.2d 46, 57 (D.D.C.2003) (permitting defensive use of collateral estoppel against the plaintiff in the prior action) (citing Jackson v. District of Columbia, 412 A.2d 948, 952-53 (D.C.1980)); Jack Faucett Assocs., Inc. v. Am. Tel. and Tel. Co., 744 F.2d 118, 124-25 (D.C.Cir.1984) (permitting offensive use of collateral estoppel against the defendant in the prior action). . The AMS Defendants argue that the fraud-based claims (Counts VIII through X) are barred by both issue and claim preclusion. However, because the Court is dismissing the fraud and fraudulent concealment claims as a result of the plaintiffs’ concession that they failed to allege facts sufficient to state a claim for either of these claims, the Court will not" }, { "docid": "1047665", "title": "", "text": "making this assertion, Frye acknowledges that he is asking this court to refute the holding of Nix v. Fulton Lodge No. 2, I.A.M., 452 F.2d 794 (5th Cir.), cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972). In Nix, the plaintiff had alleged that the union’s wrongful discipline had resulted in his discharge from employment and expulsion from union membership, in violation of section 101(a)(2) of the LMRDA. In an earlier unfair labor practice charge, based on LMRA sections 8(a)(1) and 8(a)(3), the NLRB had found that his discharge was due to misconduct on the job, not his union membership or activity. The Fifth Circuit held that the earlier NLRB decision had preclusive effect and dismissed the later suit. Nix has been cited by a number of other circuits as standing for the proposition that issue preclusion in this situation is appropriate. It is true that actions based on one statute should not automatically be given preclusive effect in actions based on another statute. Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971). And it is also true that considerations of fairness can make application of collateral estoppel inappropriate for a number of reasons. Parklane Hoisery Co. v. Shore, 439 U.S. 322, 332, 99 S.Ct. 645, 652, 58 L.Ed.2d 552 (1979). However, when all factors required for collateral estoppel are present, it is the party opposing preclusion who must demonstrate that applying collateral estoppel in a specific case would result in particularized unfairness, see Wickham, 715 F.2d at 26. It is not enough to argue, however persuasively, that there are theoretical differences that could potentially lead to unfairness and make collateral estoppel inappropriate. We are not required to determine if there might be situations in which differences in the way LMRDA and LMRA determinations are made that could, in some situations, lead to a result different than that in Nix. We need only determine if the analysis actually applied in this NLRB proceeding was so unlike the analysis that would have been applied by a district court that application of collateral estoppel" }, { "docid": "19259302", "title": "", "text": "the two elements, liability and damages, so an adversary proceeding respecting dischargeability consists of three elements, liability, damages, and dischargeability. A non-bankruptcy court may consider the issues of liability and damages, but it may not rule on the question of dischargeability. In a personal injury case the non-bankruptcy court may determine liability, damages, and willfulness, but it cannot establish dischargeability or nondischargeability. The Bankruptcy Court, however, may adopt the findings of the non-bankruptcy court where they have been litigated fully. Thus a Bankruptcy Court might apply offense collateral estoppel on the issue of liability, or on the issues of liability and damages, or on the issues of liability, damages, and willfulness, depending on the extent to which those issues were litigated in the prior action, but the Bankruptcy Court would still have to determine on the basis of those proven facts whether or not those acts come within § 523(a)(2), (4), or (6). In re Magnafici, 16 B.R. 246, 252-53 (Bankr.N.D.Ill.1981); In re Cohen, 92 B.R. 54, 60 (Bankr.S.D.N.Y.1988). See also St. Laurent, 991 F.2d at 676 (“the ultimate issue of dischargeability is a legal question to be addressed by the bankruptcy court”). Though the bankruptcy court will ultimately decide whether Sterling’s claims against Whelan and Schaner are nondis-chargeable as obtained by fraud under 11 U.S.C. § 523(a)(2)(A), it may give preclu-sive effect to both the state court’s judgment regarding Whelan’s and Schaner’s liability on the elements of fraud and the state court’s determination of damages. This court will accordingly consider whether the bankruptcy court erred in failing to apply the doctrine of collateral estoppel to either the damages found by the state court or to the state court’s adjudication of Whelan’s and Schaner’s liability for fraud, a. Damages In finding that the state court had failed to afford Whelan and Schaner a full and fair opportunity to litigate the issue of damages in the fraud proceeding, the bankruptcy court relied upon Georgia statutory law, which provides: If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in" }, { "docid": "3567822", "title": "", "text": "use of offensive collateral estoppel, the Supreme Court has held that in lieu of prohibiting its use altogether, district courts should be granted “broad discretion to determine when it should be applied.” Id. at 331, 99 S.Ct. 645. But this discretion should not be exercised to permit the use of offensive collateral estoppel “where a plaintiff could easily have joined in the earlier action or where ... the application of offensive es-toppel would be unfair to a defendant,” particularly in several specified ways. Id. Thus, when exercising its discretion, a court should consider the following nonexclusive factors: (1) whether the plaintiff could have -easily joined in the action against the defendant in the earlier action, (2) whether the defendant had an incentive in the prior action to have defended the action fully and vigorously; (3) whether the defendant had won litigation other than the prior action that determined the same issués or facts favorably to the defendant; (4) whether procedural opportunities are available in the pending action that were not available in the prior action. See id. at 331-32, 99 S.Ct. 645. In sum, the doctrine of offensive collateral estoppel or offensive issue preclusion may be used cautiously to preclude a defendant from relitigating a fact actually found against the defendant in prior litigation when the fact was critical and necessary to the judgment in the prior litigation, so long as the plaintiff using the fact could not have easily joined the prior litigation and application of the doctrine would not be unfair to the defendant. The caution that is required in application of offensive collateral estoppel counsels that the criteria for foreclosing a defendant from relitigating an issue or fact be applied strictly. See, e.g., Jack Faucett Assocs. v. AT & T, 744 F.2d 118, 124 (D.C.Cir.1984) (“The doctrine [of offensive collateral estoppel] is detailed, difficult, and potentially dangerous”). The single criterion at issue in this appeal is whether the district court correctly applied the requirement that facts subject to collateral estoppel be “critical and necessary” to the judgment in the prior litigation. While the district court correctly stated" } ]

[ { "docid": "22373008", "title": "", "text": "case; (4) Federal Rule of Civil Procedure 12(b)(6) standards govern our review of dismissals under section 1915(e)(2)(B)(ii); and (5) the district court erred in dismissing Mitchell’s First Amendment retaliation claim pursuant to section 1915(e)(2)(B)(ii). As a result, we remand to the district court for further proceedings. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Farcass and King were never served with Mitchell’s complaint. . In his brief to this court, Mitchell’s counsel made clear that Mr. Mitchell does not contend that the amended statute's different treatment of indigent prisoners implicates the line of Supreme Court cases beginning with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), which generally prohibits making access to the . appellate process dependent on the appellant's ability to pay.... Mr. Mitchell also does not contend that prisoners (or specifically indigent prisoners) are a suspect class for purposes of his equal-protection claim. Appellant’s Br. at 17-18. We note that both the Fourth and Sixth Circuits have considered and rejected each of these contentions in denying challenges to the PLRA. See Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1284-87 (6th Cir.1997). . Although Mitchell discussed this issue in his brief, he did not formally assert it. He did, however, pursue the issue at oral argument, and therefore we address it. See Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1561 n. 11 (11th Cir.1995). LAY, Senior Circuit Judge, concurring: I am pleased to concur in Chief Judge Hatchett’s excellent opinion holding (1) that the filing fee provisions of the PLRA do not violate a prisoner’s equal protection rights, and (2) that the procedural mechanism for dismissal of in forma pawperis (IFP) suits found in § 1915(e)(2) may be applied retroactively. I write separately, however, to note my concern as to the constitutionality of § 1915(e)(2)(B)(ii), which allows sua sponte dismissal of an IFP complaint that fails to state a claim upon which relief may be granted. This case comes to us in an unusual posture. On June 18, 1996, the district court," } ]

[ { "docid": "22157713", "title": "", "text": "Therefore, because Carson has at least three strikes, he may not proceed IFP in this or any other federal lawsuit which does not involve “imminent danger of serious physical injury.” He may resume any claims dismissed under § 1915(g) under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. See Adepegba, 103 F.3d at 388. The appeal is DISMISSED. . Before the passage of the Prison Litigation Reform Act (\"PLRA”) of 1995, Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 804(a), Pub.L. No. 104-134, 110 Stat. 1321 (1996) (to be codified at 28 U.S.C. § 1915), § 1915(d) authorized the dismissal of frivolous or malicious actions. . Whether he could appeal at all without obtaining a certificate of appealability, see 28 U.S.C. § 2253(c), as amended by § 102 of the AEDPA, is another question, one which we do not reach. . See Adarand Constructors, Inc. v. Pena,-U.S. -, -, 115 S.Ct. 2097, 2108, 132 L.Ed.2d 158 (1995) (stating that the Due Process Clause guarantees equal protection). Carson also alleges that the PLRA violates the separation-of-powers doctrine. He does not explain this assertion, other than by stating that \"congress wrongly meddled with the judiciary.” This is insufficient to preserve this argument. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n. 9 (5th Cir.1995) (holding that \"failure to provide any legal or factual analysis of an issue results in waiver”); United States v. Maldonado, 42 F.3d 906, 910 n. 7 (5th Cir.1995) (reasoning that failure to do more than vaguely refer to an issue constitutes waiver). . See Hampton, 106 F.3d at 1286-87 (citing 141 Cong. Rec. S7256 (daily ed. May 25, 1995) (statement of Sen. Kyi) (noting the prevalence of meritless prisoner lawsuits)). . See, e.g., In re Carson, 500 U.S. 931, 111 S.Ct. 2067, 114 L.Ed.2d 472 (1991) (denying writ of mandamus); Carson v. Bowles, No. 95-10115, 77 F.3d 479 (5th Cir. Jan.17, 1996) (per curiam) (unpublished) (affirming summary judgment for defendant); In re Carson, No. 95-00138 (5th Cir. July 11, 1995) (per curiam) (unpublished) (denying" }, { "docid": "22263456", "title": "", "text": "to some legitimate end” to comport with the Equal Protection Clause of the Fourteenth Amendment, as incorporated through the Due Process Clause of the Fifth Amendment. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Because we have rejected Mr. White’s assertion that he has a fundamental interest at stake, and he does not claim to be a member of a suspect class, we must reject his invitation to review § 1915(g) under the strict scrutiny standard. See Carson, 112 F.3d at 821-22 (“Neither prisoners nor indigents constitute a suspect class.”). The Fifth Circuit observed, “[i]t can hardly be doubted that deterring frivolous and malicious lawsuits, and thereby presexwing scarce judicial resources, is a legitimate state interest.” Id. at 822. “Unquestionably, the ends that Congress enacted section 1915(g) to achieve—the curtailment of abusive prisoner tort, civil rights and conditions litigation and preserving scarce judicial resources are legitimate.” Rivera, 144 F.3d at 727 (internal quotation marks and citation omitted); see also Wilson, 148 F.3d at 604 (noting Congress’ legitimate interest in deterring frivolous prisoner litigation). Section 1915(g) is rationally related to the legitimate end of deterring frivolous and malicious prisoner lawsuits. We already have joined with many of our sister circuits in holding that the general fee provisions of the Prison Litigation Reform Act, requiring prisoner indigents to prepay a partial filing fee, are rationally related to the legitimate goal of deterring abuse of the federal judicial system. See Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); accord Mitchell v. Farcass, 112 F.3d 1483, 1487-89 (11th Cir.1997); Roller, 107 F.3d at 231-34; Hampton v. Hobbs, 106 F.3d 1281, 1286-87 (6th Cir.1997). We now conclude “[i]t is equally rational for Congress to separate frequent filer prisoner indigents from prisoner indigents who file less frequently and disqualify the former class from the luxury of having to advance only a partial amount (or, if the prisoner is destitute, no amount) of the filing fee.” Rivera, 144 F.3d at 728. As the Fifth Circuit concluded, “[i]t is ... undebatable that prohibiting litigants with a history of frivolous or malicious" }, { "docid": "22449570", "title": "", "text": "by inmates[.]”). Section 1915(g) rationally serves these ends through its requirement that prisoner indigents with three strikes prepay the entire filing fee before the court may further review their lawsuit (unless imminent danger of serious physical injury exists). In Mitchell, we found a rational relation between the PLRA’s ends, that is, curtailing abuse of the federal judicial system, and its means, that is, requiring only prisoner indigents, as opposed to non-prisoner indigents, to prepay a partial filing fee. See 112 F.3d at 1488 (“Clearly, Congress had a rational basis to believe that the fee requirements of the PLRA would further [its] objective.”) (citations omitted); see also Roller, 107 F.3d at 233 (“The PLRA amendments easily satisfy the rational basis standard”). It is equally rational for Congress to separate frequent filer prisoner indigents from prisoner indigents who file less frequently and' disqualify the former class, from the luxury of having to advance only a partial amount (or, if the prisoner is destitute, no amount) of the filing fee. Plainly, Congress had a rational basis to believe that revoking altogether IFP privileges from prisoners with a demonstrated history of abuse—that is, three of more dismissals on specified grounds—would further the goal of curtailing abusive prison litigation. Congress did not enact the PLRA in a vacuum. It held hearings and rendered findings, concluding that prisoners file more frivolous lawsuits than any other class of persons. See Hampton, 106 F.3d at 1286-87 (quoting legislative history). Certainly, Congress could rationally build upon this notion in targeting the most litigious of this already-litigious class of persons. See Carson, 112 F.3d at 822 (“It is ... undebatable that prohibiting litigants with a history of frivolous or malicious lawsuits from proceeding IFP will deter ... abuses [of the federal judicial system].”). Rivera has little, if any, Article III support for his contention. In Lyon v. Krol, the district court held that section 1915(g) violated the equal protection rights of prisoners that would otherwise qualify for IFP status. 940 F.Supp. 1433, 1439 (S.D.Iowa 1996). Two judges of the Eighth Circuit, however, dismissed the appeal, concluding that Lyon lacked standing" }, { "docid": "22093859", "title": "", "text": "preceding the filing of the complaint or notice of appeal.” Id. After payment of the initial fee, the prisoner must make monthly payments equal to 20 percent of the preceding month’s income credited to the account to be forwarded when the prisoner’s account balance exceeds ten dollars. 28 U.S.C. § 1915(b)(2). The PLRA provision at issue in this appeal is the “safety-valve” provision, which provides that a prisoner cannot “be prohibited from bringing a civil action ... for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4). A. Constitutionality of the Filing Fee Provisions Taylor contends that the filing fee provisions of 28 U.S.C. § 1915(b) violate his constitutional right of meaningful access to the courts and right to equal protection. Although this court has already upheld the constitutionality of the PLRA “three strikes rule,” 28 U.S.C. § 1915(g), see Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999), Taylor’s challenge to the constitutionality of the PLRA’s filing fee provi sions is an issue of first impression in this Circuit. Several circuits have already considered constitutional challenges to § 1915(b) and have uniformly concluded that the PLRA fee filing requirements pass constitutional muster. See Tucker v. Branker, 142 F.3d 1294, 1299, 1301 (D.C.Cir.1998) (holding that § 1915(b) does not violate right of access to the courts or right to equal protection); Luden v. DeTella, 141 F.3d 773, 775-76 (7th Cir.1998) (holding that § 1915(b) does not violate the right of access to the courts); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997) (same); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997) (same); Nicholas v. Tucker, 114 F.3d 17, 20-21 (2d Cir.1997) (holding that § 1915(b) does not violate the right of access to the courts, right to equal protection, or rights under the First Amendment); Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997) (holding that § 1915(b) does not violate the Equal Protection Clause); Roller v. Gunn, 107 F.3d 227, 230-34 (4th Cir.1997) (holding that § 1915(b) does not violate the right" }, { "docid": "22449556", "title": "", "text": "other frequent filer prisoner indigents from filing civil lawsuits— even meritorious ones—since they cannot afford to prepay the entire filing fee. We disagree. “[T]he right of access to federal courts is not a free-floating .right, but rather is subject to Congress’s Article III power to set limits on federal legislation.” Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.), cert. denied, — U.S. -, 118 S.Ct. 192, 139 L.Ed.2d 130 (1997). Although it had the power to do so, Congress did not repeal any particular cause-of-action available to prisoners. Rather, “[s]ection 1915(g) does not prevent a prisoner with three strikes from filing civil actions; it merely prohibits him from enjoying IFP status.” Carson v. Johnson, 112 F.3d 818, 821 (5th Cir.1997); see also Lyon, 127 F.3d at 765 (“Section 1915(g) does not prohibit prisoners from pursuing legal claims if they have had ‘three strikes’ or three prior dismissals. It only limits their ability to proceed [IFP].”). Through the PLRA, Congress changed only the rules regarding IFP status. To be sure, proceeding IFP in a civil case is a privilege, not a right—fundamental or otherwise. See Adepegba, 103 F.3d at 386. As such, imposition of a modest filing fee on prisoners with “three strikes” is reasonable because “Congress is no more compelled to guarantee free access to federal courts than it is to provide unlimited access to them.” Roller, 107 F.3d at 231. A review of Rivera’s underlying lawsuit does not change our conclusion. The Supreme Court has mandated waivers of filing fees in civil cases only where “the litigant has a ‘fundamental interest at stake.’ ” Carson, 112 F.3d at 821 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 562, 136 L.Ed.2d 473 (1996)). The Fifth Circuit, collecting cases, outlined the boundaries: “Examples of proceedings that implicate fundamental interests are divorce actions ... and terminations of parental rights.... Examples of interests that do not rise to this level are bankruptcy filings ... and welfare benefit determinations____” Carson, 112 F.3d at 821 (citations omitted). Rivera’s well-pled allegations (that the prison doctor disregarded his medical needs and fondled his genitals" }, { "docid": "22449555", "title": "", "text": "PLRA became effective. Finally, Rivera asserts that two of his prior eases, Rivera v. Arocho, 96-275-CIV-J-99(S), and Rivera v. Parker, 96-325-CIV-J-10, were not proper “strikes” that is, they were not dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted.' Rivera’s constitutionality and retro-activity arguments “present legal questions that we address in a plenary fashion.” Mitchell, 112 F.3d at 1487. Similarly, we review the district court’s determination of qualifying strikes de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Adepegba, 103 F.3d at 387. A. The United States Constitution provides that “Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.” U.S. Const, amend I. Rivera focuses on one aspect of the First Amendment, “the right of access to the courts[.]” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983). Specifically, Rivera argues that section 1915(g)’s purpose and effect is to prevent him and other frequent filer prisoner indigents from filing civil lawsuits— even meritorious ones—since they cannot afford to prepay the entire filing fee. We disagree. “[T]he right of access to federal courts is not a free-floating .right, but rather is subject to Congress’s Article III power to set limits on federal legislation.” Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.), cert. denied, — U.S. -, 118 S.Ct. 192, 139 L.Ed.2d 130 (1997). Although it had the power to do so, Congress did not repeal any particular cause-of-action available to prisoners. Rather, “[s]ection 1915(g) does not prevent a prisoner with three strikes from filing civil actions; it merely prohibits him from enjoying IFP status.” Carson v. Johnson, 112 F.3d 818, 821 (5th Cir.1997); see also Lyon, 127 F.3d at 765 (“Section 1915(g) does not prohibit prisoners from pursuing legal claims if they have had ‘three strikes’ or three prior dismissals. It only limits their ability to proceed [IFP].”). Through the PLRA, Congress changed only the rules regarding IFP status. To be sure, proceeding IFP in a civil" }, { "docid": "22142941", "title": "", "text": "other items rather than filing a civil rights suit, “he has demonstrated an implied evaluation of that suit” that the courts should be entitled to honor. Roller, 107 F.3d at 233 (quoting Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257, 260 (7th Cir.1987)). The PLRA also created § 1915(g), which is the “three strikes” provision now at issue. Section 1915(g) provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or ap peal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. We have noted that § 1915(g) “does little more than apply the same rules to prisoners that apply to everyone else who brings an action or appeal.” Altizer, 191 F.3d at 546. In other words: Although section 1915(g) attaches consequences to past actions, ... [it] does not affect a prisoner’s substantive rights, and it does not block his or her access to the courts. A prisoner may still pursue any claim after three qualifying dismissals, but he or she must do so without the aid of the [IFP] procedures. Id. at 546 n. 11 (quoting Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir.1996)). Additionally, the PLRA increases the obligation of federal courts to dismiss certain prisoner litigation. “Before the PLRA, the in forma pauperis provision of § 1915 [then codified at 28 U.S.C. § 1915(d)], applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious.” Jones, 549 U.S. at 214, 127 S.Ct. 910. However, the PLRA amended § 1915(d), and recodified it as § 1915(e)(2)(B), by adding (among other things) that the courts should dismiss an IFP action that “fails to state a claim on which relief may be granted.” Similarly, the PLRA" }, { "docid": "6629110", "title": "", "text": "amicus argues that the PLRA denies indigent prisoners due process because it requires the district court sua sponte to dismiss an IFP case that “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). At least one circuit judge has expressed the view that this provision is unconstitutional. Mitchell v. Farcass, 112 F.3d 1483, 1490-93 (11th Cir.1997) (Lay, J. concurring). Tucker, however, does not have standing to raise this argument (and neither, therefore, has the ami-cus) because the district court did not dismiss Tucker’s complaint, pursuant to the statute as amended, for failure to state a claim. Rather, the district court dismissed Tucker’s complaint, pursuant to the prior version of § 1915, as frivolous; the PLRA was not yet in force. For the foregoing reasons we hold that the filing-fee provision of the PLRA does not violate Tucker’s due process right of access to the courts. B. Equal Protection The amicus argues that the filing-fee provision of the PLRA violates the equal protection component of the due process clause because it discriminates against prisoners. Again, we join four other circuits in concluding that the PLRA does not deny prisoners the equal protection of the law. See Luden v. DeTella, 141 F.3d 773, 774 (7th Cir.1998); Nicholas, 114 F.3d at 19-21; Mitchell, 112 F.3d at 1487-89; Roller, 107 F.3d at 233-34; Hampton, 106 F.3d at 1286-87. Initially we reject the amicus’s argument that the filing-fee provision is subject to strict scrutiny because it substantially burdens a prisoner’s fundamental right of access to the courts. A legislative classification that does not burden either a fundamental right or a suspect class must be reviewed under the rational basis test. See Vacco v. Quill, -U.S.-,-, 117 S.Ct. 2293, 2297, 138 L.Ed.2d 834 (1997); Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976) (per curiam). We have already determined that the filing-fee provision of the PLRA does not burden a prisoner’s right of effective access to the courts." }, { "docid": "443324", "title": "", "text": "cases. If for some reason § 1983 cases are exceptions to this principle, cf. M.L.B. v. S.L.J., — U.S. •-, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), § 1915(b)(4) affords indigent prisoners everything to which they could be entitled. It reads: “In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” The plra thus never blocks access to court solely on account of a prisoner’s indigence—-although a combination of indigence with a history of frivolous litigation may have this effect under § 1915(g). All the partial-prepayment and periodic-payment provisions in the amended § 1915 do is provide a means to collect from prison trust accounts sums that prisoners owe independently of § 1915 (for it is not § 1915 that imposes the filing fees). Zehner v. Trigg, 133 F.3d 459 (7th Cir.1997), rejects an argument that a different section of the plra is unconstitutional because it distinguishes between prisoners and other litigants. Section 1915(b)(1) and (2) is no more vulnerable on that account. Jockisch, 133 F.3d at 469 n. 7, observes that periodic collection from prisoners does not deprive prisoners of access to the courts—Lucien has had his day in court on this appeal—and we now cross the “t” by joining seven other circuits in holding that § 1915(b) as amended by the plra is within Congress’ power under the Constitution. Nicholas v. Tucker, 114 F.3d 17 (2d Cir. 1997); Roller v. Gunn, 107 F.3d 227, 231-34 (4th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997); Lyon v. Krol, 127 F.3d 763 (8th Cir.1997); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Mitchell v. Farcass, 112 F.3d 1483, 1487-89 (11th Cir.1997). One final issue requires attention. Lucien’s request for return of the appellate fee led us to examine the record of payments and to discover that his prison has so far remitted only $19.08 in addition to" }, { "docid": "22449585", "title": "", "text": "cases and does not, for example, apply to habeas corpus proceedings. See Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir.1997). .However, \"the prisoner is still obligated to pay the full filing fee when the money does become available.” McGore v. Wrigglesworth, 114 F.3d 601, 606 (6th Cir.1997). . In Roller, the Fourth Circuit rejected the prisoner’s contention that the filing fee and cost provisions of the PLRA (28 U.S.C. § 1915(b)(1), (b)(2) and (b)(4)) violated \"his constitutional right of access to the courts,” finding them to be only \"mild\" barriers to the courthouse. 107 F.3d at 231, 233. But cf. Church v. Attorney Gen. of Va., 125 F.3d 210, 212 (4th Cir.1997) (“Although the increased up-front cost imposed by [section 1915(b)] may deter prisoners from pursuing claims that they may otherwise have pursued-one of the arguments for enacting the PLRA-their right of access to the courts has nevertheless been diminished[.]”). The Roller prisoner, however, did not challenge the \"three strikes” provision. . In Carson, the Fifth Circuit rejected the' prisoner’s contention, that “the 'three, strikes' provision of the PLRA is unconstitutional because it blocks access to the courts[.]” 112 F.3d at 821. . This circuit has upheld pre-filing screening restrictions on litigious plaintiffs, reasoning that the plaintiffs were not “completely foreclosed from any access to the court.\" Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir.1993) (collecting cases). . See generally Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir.1997) (vacating district court’s application of section 1915(g) and remanding for a determination of whether the prisoner \"was in imminent danger of bodily harm ... when the alleged incidents occurred\" , based on the prisoner’s well-pled allegations). .In Hampton, the Sixth Circuit held that \"the fee provisions of the [PLRA] do not deprive prisoners of their right of access to the courts.” 106 F.3d at 1286. Like the Roller prisoner, the Hampton prisoner did not challenge section 1915(g). Recently, however, the Sixth Circuit held that \" § 1915(g) does not infringe upon the fundamental right of access to the courts.” Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir.1998). We" }, { "docid": "22449586", "title": "", "text": "strikes' provision of the PLRA is unconstitutional because it blocks access to the courts[.]” 112 F.3d at 821. . This circuit has upheld pre-filing screening restrictions on litigious plaintiffs, reasoning that the plaintiffs were not “completely foreclosed from any access to the court.\" Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir.1993) (collecting cases). . See generally Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir.1997) (vacating district court’s application of section 1915(g) and remanding for a determination of whether the prisoner \"was in imminent danger of bodily harm ... when the alleged incidents occurred\" , based on the prisoner’s well-pled allegations). .In Hampton, the Sixth Circuit held that \"the fee provisions of the [PLRA] do not deprive prisoners of their right of access to the courts.” 106 F.3d at 1286. Like the Roller prisoner, the Hampton prisoner did not challenge section 1915(g). Recently, however, the Sixth Circuit held that \" § 1915(g) does not infringe upon the fundamental right of access to the courts.” Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir.1998). We note, .but place no reliance upon, the Sixth Circuit’s reasoning that section 1915(g) does not prevent frequent filer prisoner indigents from proceeding IFP in state court. See Wilson, 148 F.3d at 604-05; see also Hampton, 106 F.3d at 1284 (The PLRA \"does not affect an inmate’s ability to-seek relief in state court or through state grievance procedures.”). But cf. Lyon v. Krol, 940 F.Supp. 1433, 1437 (S.D.Iowa 1996) (“Although inmates can also bring § 1983 claims in state court, plaintiffs have an important interest in access to federal courts for vindication of their federal constitutional rights.”), appeal dismissed and remanded, 127 F.3d 763 (8th Cir.1997). . No other circuit has apparently addressed whether section 1915(g) violates the separation of powers. See Carson, 112 F.3d at 821 n. 3 (allegation that “congress [sic] wrongfully meddled with the judiciary” did not preserve prisoner’s argument that section 1915(g) violates the separation of powers). . Although the Supreme Court, like Rivera, did not specify the kind of due process relied upon, we read Richards as a procedural due process" }, { "docid": "6629102", "title": "", "text": "imposed on persons who want to sue.” Lumbert v. Illinois Dep’t of Corrections, 827 F.2d 257, 259 (7th Cir.1987). The present question, therefore, is whether the Sling-fee provision of the PLRA denies prisoners effective access to the courts. For the reasons set out below, we join five other circuits in concluding that it does not. See Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1284-86 (6th Cir.1997). We begin with the observation that, under the safety-valve provision, even a destitute prisoner may file Ms suit if he wants to, without having to pay any initial fee; his only obligation is to pay the fee when and if he can, as detailed below. 28 U.S.C. § 1915(b)(4); see Norton, 122 F.3d at 290-91; Nicholas, 114 F.3d at 21; Roller, 107 F.3d at 233; Hampton, 106 F.3d at 1284. Second, a prisoner with only modest means must make only a proportionately modest up-front payment — 20% of the average monthly deposits or balance in Ms account over a six-month period. Whether the prisoner paid some or none of the fee upon filing, the balance due is collected from Mm at the 20% rate only when and if “the amount in [Ms] account exceeds $10.” 28 U.S.C. § 1915(b)(1) & (2); see Roller, 107 F.3d at 233; Hampton, 106 F.3d at 1284. Third, even an indigent prisoner who loses his case and must pay the defendant’s costs may do so over time, upon the same terms as the filing fee. 28 U.S.C. § 1915(f)(2)(B). In’ sum, the payment requirement of the PLRA never exacts more than 20% of an indigent prisoner’s assets or income. The amicus contends that Tucker challenges the PLRA filing-fee provision “as applied” to him. Although Tucker himself is not clear on the point we shall accept the amicus’s characterization of Tucker’s challenge for the sake of the argument. The argument is that the fee requirement" }, { "docid": "22263457", "title": "", "text": "deterring frivolous prisoner litigation). Section 1915(g) is rationally related to the legitimate end of deterring frivolous and malicious prisoner lawsuits. We already have joined with many of our sister circuits in holding that the general fee provisions of the Prison Litigation Reform Act, requiring prisoner indigents to prepay a partial filing fee, are rationally related to the legitimate goal of deterring abuse of the federal judicial system. See Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); accord Mitchell v. Farcass, 112 F.3d 1483, 1487-89 (11th Cir.1997); Roller, 107 F.3d at 231-34; Hampton v. Hobbs, 106 F.3d 1281, 1286-87 (6th Cir.1997). We now conclude “[i]t is equally rational for Congress to separate frequent filer prisoner indigents from prisoner indigents who file less frequently and disqualify the former class from the luxury of having to advance only a partial amount (or, if the prisoner is destitute, no amount) of the filing fee.” Rivera, 144 F.3d at 728. As the Fifth Circuit concluded, “[i]t is ... undebatable that prohibiting litigants with a history of frivolous or malicious lawsuits from proceeding [in forma pauperis] will deter such abuses.” Carson, 112 F.3d at 822. Accordingly, we now join the Eleventh, Sixth, and Fifth Circuits in concluding that § 1915(g) does not violate the guarantees of equal protection and due process. See Wilson, 148 F.3d at 604-05; Rivera, 144 F.3d at 727-28; Carson, 112 F.3d at 821-22. We reject Mr. White’s constitutional challenge to § 1915(g) of the in forma pauperis statute. See 28 U.S.C. § 1915(g). Mr. White fails to persuade us the “three strikes” provision denies him “adequate, effective, and meaningful” access to the federal courts. Bounds, 430 U.S. at 822, 97 S.Ct. 1491. He simply has to prepay the $105 filing fee to pursue his appeal. Nor are we convinced § 1915(g) impermissibly intrudes upon his equal protection or due process rights to pursue his lawsuit. Furthermore, Mr. White fails to make a credible allegation that he is in imminent danger of serious physical harm; thus, we find no reason not to apply § 1915(g). Accordingly, the judgment of the district court" }, { "docid": "22449553", "title": "", "text": "Farcass, this court recently rejected a prisoner’s equal protection challenge to the PLRA’s filing fee provisions’ disparate treatment of prisoner indigents vis-a-vis non-prisoner indigents, concluding that “Congress had ample justification (e.g., prisoners often have an abundance of free time, live in a nearly cost-free environment, and have unique incentives to file meritless or frivolous lawsuits) in differentiating between” them. 112 F.3d 1483, 1489 (11th Cir.1997). At issue today is the PLRA’s treatment of “frequent filer” prisoner indigents (that is, prisoners who have had at least three prior prison-generated lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted) vis-a-vis other prisoner indigents: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 'relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. § 1915(g). This provision of the PLRA, “commonly known as the ‘three strikes’ provision,” requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997). The only exception to section 1915(g) is if the frequent filer prisoner is “under imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g). Raising issues of first impression in this circuit, Rivera challenges the constitutionality of section 1915(g) on four grounds: (1) the First Amendment right to access the courts; (2) the separation of judicial and legislative powers; (3) the Fifth Amendment right to due process of law; and (4) the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment. Alternatively, Rivera raises retroactivity concerns, contending that the district court erred in counting as strikes lawsuits dismissed prior to April 26, 1996, the date the" }, { "docid": "22449554", "title": "", "text": "fails to state a claim upon which 'relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. § 1915(g). This provision of the PLRA, “commonly known as the ‘three strikes’ provision,” requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997). The only exception to section 1915(g) is if the frequent filer prisoner is “under imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g). Raising issues of first impression in this circuit, Rivera challenges the constitutionality of section 1915(g) on four grounds: (1) the First Amendment right to access the courts; (2) the separation of judicial and legislative powers; (3) the Fifth Amendment right to due process of law; and (4) the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment. Alternatively, Rivera raises retroactivity concerns, contending that the district court erred in counting as strikes lawsuits dismissed prior to April 26, 1996, the date the PLRA became effective. Finally, Rivera asserts that two of his prior eases, Rivera v. Arocho, 96-275-CIV-J-99(S), and Rivera v. Parker, 96-325-CIV-J-10, were not proper “strikes” that is, they were not dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted.' Rivera’s constitutionality and retro-activity arguments “present legal questions that we address in a plenary fashion.” Mitchell, 112 F.3d at 1487. Similarly, we review the district court’s determination of qualifying strikes de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Adepegba, 103 F.3d at 387. A. The United States Constitution provides that “Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.” U.S. Const, amend I. Rivera focuses on one aspect of the First Amendment, “the right of access to the courts[.]” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983). Specifically, Rivera argues that section 1915(g)’s purpose and effect is to prevent him and" }, { "docid": "22932904", "title": "", "text": "be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” We disagree. Section 1915(b)(4) pertains to the initial partial filing fee requirement of § 1915(b)(1). Moreover, it is subject to the “three strikes” rule of § 1915(g), which applies to § 1915 as a whole. In his supporting affidavit, Patton asserts that he is not barred by § 1915(g) from bringing this appeal because “he has no causes dismissed as frivolous since the passage of the PLRA.” This argument is foreclosed by Adepegba, which applies the PLRA to cases dismissed prior to its enactment. Adepegba, 103 F.3d at 387. He also points out that his present action challenges an unconstitutional lockdown. In Carson v. Johnson, 112 F.3d 818 (5th Cir.1997), however, we held that the fact that the plaintiff was challenging administrative segregation did not entitle him to a waiver of the filing fees. Id. at 821. Patton has presented no basis to avoid the insuperable bar of § 1915(g). He may, of course, file appeals after paying the required filing fee, as must other litigants. He may also litigate actions that involve imminent danger of serious physical injury. Adepegba, 103 F.3d at 388; Carson, 112 F.3d at 823. Prior to the date Patton brought the present appeal, he already had three strikes against him. We therefore DENY his motion to proceed IFP and DISMISS the appeal. DISMISSED. . We reserve the larger question whether, under the plain language of § 1915(g), a frivolous habe- as claim by itself counts as a strike for purposes of§ 1915(g). . At the time he filed suit, Patton was an inmate confined at the Jefferson Parish Correctional Center located in Gretna, Louisiana. . We remanded for reconsideration in light of Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 112-13 (4th Cir.1988), in which the Fourth Circuit held that an indefinite stay should only be considered as a last resort after all other alternatives, such as securing the" }, { "docid": "23010071", "title": "", "text": "not a suspect class); Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir.1998) (prisoners are not a suspect class); Tucker v. Branker, 142 F.3d 1294 (D.C.Cir.1998) (indigent prisoners are not a suspect class). Additionally, § 1915(g) does not infringe on a prisoner’s constitutional right to access the courts. Although the Supreme Court, in Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), held that prisoners have a constitutional right of meaningful access to the courts, a prison system need not provide maximum or even optimal level of access. Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.1990). Other courts have upheld regulations which impose reasonable costs on persons who want to sue. Lumbert v. Illinois Dep’t of Corrections, 827 F.2d 257, 259 (7th Cir.1987). We have not previously addressed whether fee requirements and specifically § 1915(g) violates a prisoner’s right to access the courts. Seven circuits have addressed the related issue of whether requiring prisoners to pay fees violates a prisoner’s access to the courts. See Tucker v. Branker, 142 F.3d 1294, 1297 (D.C.Cir.1998); Luden v. DeTella, 141 F.3d 773, (7th Cir.1998); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281,1284-86 (6th Cir.1997). All seven have held that requiring prisoners to pay a filing fee does not deny a prisoner effective access to the courts. These cases reason that requiring prisoners to make the same financial decisions as non-prisoners before filing a cause, of action does not violate equal protection. However, these cases deal with portions of the PLRA which require prisoners to pay filing fees in installments when their inmate accounts contain more than ten dollars. See 28 U.S.C. § 1915(b). Although relevant, these cases are not directly on point. In fact, only two circuit courts have specifically addressed whether § 1915(g) violates a prisoner’s access to" }, { "docid": "22093860", "title": "", "text": "sions is an issue of first impression in this Circuit. Several circuits have already considered constitutional challenges to § 1915(b) and have uniformly concluded that the PLRA fee filing requirements pass constitutional muster. See Tucker v. Branker, 142 F.3d 1294, 1299, 1301 (D.C.Cir.1998) (holding that § 1915(b) does not violate right of access to the courts or right to equal protection); Luden v. DeTella, 141 F.3d 773, 775-76 (7th Cir.1998) (holding that § 1915(b) does not violate the right of access to the courts); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997) (same); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997) (same); Nicholas v. Tucker, 114 F.3d 17, 20-21 (2d Cir.1997) (holding that § 1915(b) does not violate the right of access to the courts, right to equal protection, or rights under the First Amendment); Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997) (holding that § 1915(b) does not violate the Equal Protection Clause); Roller v. Gunn, 107 F.3d 227, 230-34 (4th Cir.1997) (holding that § 1915(b) does not violate the right of access to the courts or right to equal protection); Hampton v. Hobbs, 106 F.3d 1281, 1284-1288 (6th Cir.1997) (holding that § 1915(b) does not violate the right of access to the courts or rights under First Amendment, Due Process Clause, Equal Protection Clause, or Double Jeopardy Clause). We agree. 1. Meaningful Access to the Courts “It is now established beyond doubt that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). That access must be “adequate, effective and meaningful.” Id. at 822, 97 S.Ct. 1491; see also Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (recognizing the Court’s previous extension of the right of access to the courts to “civil rights actions”). This right, however, is not absolute or unconditional in the civil context, except in a very narrow band of cases where the litigant has “a fundamental interest at stake.” Rodriguez, 169 F.3d at 1180 (citing M.L.B. v. S.L.J., 519 U.S. 102," }, { "docid": "23010072", "title": "", "text": "pay fees violates a prisoner’s access to the courts. See Tucker v. Branker, 142 F.3d 1294, 1297 (D.C.Cir.1998); Luden v. DeTella, 141 F.3d 773, (7th Cir.1998); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281,1284-86 (6th Cir.1997). All seven have held that requiring prisoners to pay a filing fee does not deny a prisoner effective access to the courts. These cases reason that requiring prisoners to make the same financial decisions as non-prisoners before filing a cause, of action does not violate equal protection. However, these cases deal with portions of the PLRA which require prisoners to pay filing fees in installments when their inmate accounts contain more than ten dollars. See 28 U.S.C. § 1915(b). Although relevant, these cases are not directly on point. In fact, only two circuit courts have specifically addressed whether § 1915(g) violates a prisoner’s access to the courts. Both courts have found the three strikes rule to be constitutional. In Carson v. Johnson, 112 F.3d 818, 821, (5th Cir.1997), the Fifth Circuit held that the three-strike rule does not violate the Fifth Amendment due process clause because it does not prohibit prisoners from filing a lawsuit, it only denies them IFP status. Likewise, in Rivera v. Allin, 144 F.3d 719, 723-24 (11th Cir.1998), the Eleventh Circuit held that IFP status is a privilege, not a right, and that § 1915(g) does not unconstitutionally burden a prisoner’s access to the courts. Significantly, the Supreme Court has at times prospectively denied IFP status to prisoners filing for writs of certiorari because those prisoners had filed numerous frivolous writs. See Shieh v. Kakita, 517 U.S. 343, 343-344, 116 S.Ct. 1311, 134 L.Ed.2d 464 (1996); Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 2, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 994, 103 L.Ed.2d 158 (1989). The Supreme Court has held that the" }, { "docid": "6629101", "title": "", "text": "his challenge to the PLRA remains alive, as we have held that “release from prison does not relieve [a former prisoner] of past due obligations under the PLRA.” In re Smith, 114 F.3d 1247, 1249 (D.C.Cir.1997). II. Analysis The amicus argues on behalf of Tucker that the filing-fee provision of the PLRA violates his due process right of access to the courts and that it discriminates against prisoners in violation of the equal protection component of due process. We conclude that the filing-fee provision is constitutional. A. Due Process Prisoners have the right, as a matter of due process, to adequate, effective, and meaningful access to the courts. See, e.g., Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 2179-80, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977); Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). But they do not ordinarily have a right to cost-free access: “The correct principle is that reasonable costs may be imposed on persons who want to sue.” Lumbert v. Illinois Dep’t of Corrections, 827 F.2d 257, 259 (7th Cir.1987). The present question, therefore, is whether the Sling-fee provision of the PLRA denies prisoners effective access to the courts. For the reasons set out below, we join five other circuits in concluding that it does not. See Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1284-86 (6th Cir.1997). We begin with the observation that, under the safety-valve provision, even a destitute prisoner may file Ms suit if he wants to, without having to pay any initial fee; his only obligation is to pay the fee when and if he can, as detailed below. 28 U.S.C. § 1915(b)(4); see Norton, 122 F.3d at 290-91; Nicholas, 114 F.3d at 21; Roller, 107 F.3d at 233; Hampton, 106 F.3d at 1284. Second, a prisoner with" } ]

[ { "docid": "4999007", "title": "", "text": "place later that day. Implicit in Sergeant Slye’s action advising appellant of his rights and preparing the field-interview sheet was a determination that appellant was a suspect and would be interviewed concerning the drug offenses. Goodson was in custody and had addressed three requests for counsel to the person in apparent authority. He had waited for several hours while interviews were under way with some of the others who had been apprehended at the same time. Under these circumstances, it is artificial to draw a distinction between the formal interview with Allinder and these events which led up to it. Even if under some other circumstances a request for counsel made prior to the commencement of interrogation might not bring Edwards v. Arizona, supra, into play, we have no doubt that here appellant’s requests had this effect. When Goodson was interviewed by MPI Allinder, he did not request a lawyer or mention his earlier request for an attorney. However, as the Supreme Court has made clear in Smith v. Illinois, supra, this later conduct did not render ambiguous or inoperative the original request for counsel. Instead, once that request had been made, it retained its effect, until the suspect “initiated” a discussion of the offense as to which he was being interviewed. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). When this case was originally considered, appellate government counsel urged us to hold that any error in admitting appellant’s statement to Allinder was harmless because subsequently he confessed to his company commander, Captain Fox, after receiving appropriate warnings of his rights. Captain Fox testified that, although she was aware that appellant had been apprehended, she did not know that he had made a statement or asked for an attorney. Because the Court of Military Review did not determine whether the statement to Captain Fox might be admitted despite the inadmissibility of the statement given to MPI Allinder, that court should have the opportunity to consider this issue and also to consider whether, if the later statement were independently admissible, the error in receiving the" } ]

[ { "docid": "12099845", "title": "", "text": "because they already knew.” The statement he gave Captain Fox was more or less like the verbal statement he already had given Allinder. After hearing the evidence and argument on the motion to suppress, the judge made various findings. Among them was a finding that, while waiting to be interviewed, Goodson had “requested to see a lawyer and permission to call a lawyer approximately three times in the first two hours,” but “[h]e was told that he could not see a lawyer ... and that the on-duty JAG officer could not be called by” him. The judge made no finding as to whether Sergeant Slye had informed Allinder of appellant’s request or whether Allinder otherwise knew of the request. However, he made this further finding that is especially significant: [I]n relation to the 28th of February, ... the accused’s initial request for a lawyer made soon after he was brought to the station to talk to a lawyer was not made at a time when he had full knowledge of his rights and was not due to any interrogation whatsoever. It is not uncommon for one arrested to want to see a lawyer, but the state of the law does allow the government to inform the accused of his rights and then ask if he understands them. Once ascertaining the suspect understands his rights, the next question is to whether he wants a lawyer present. The accused had his opportunity at that point when questioned by Agent Allinder to state that he did want an attorney and that would require the government to suspend any further questioning. In this case the accused, after being informed of his rights completely and for the first time by MPI Agent Allinder at approximately 1200 hours, he consciously elected not to demand a lawyer and waived his rights. Therefore the statement taken by MPI Agent Allinder was voluntarily and intelligently given by the accused with full knowledge of his rights. II The principal opinion now concludes — as did the military judge at trial and the Court of Military Review — that a request" }, { "docid": "12099815", "title": "", "text": "Opinion COOK, Senior Judge: Tried by special court-martial, military judge alone, the accused was convicted, in accordance with his pleas, of possession and use of marijuana, and, contrary to his pleas, of attempting to possess, transfer, and use amphetamines, in violation of Articles 134 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 880, respectively. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $334.00 pay per month for 3 months, and reduction to E-l. The findings and sentence were affirmed by the Court of Military Review. 14 M.J. 542 (1982). We granted review of the following issue: WHETHER THE MILITARY JUDGE ERRED BY RULING THAT THE APPELLANT VOLUNTARILY AND VALIDLY WAIVED HIS RIGHT TO COUNSEL DURING INTERROGATION AFTER BEING DETAINED FOR NINE OR TEN HOURS IN THE MILITARY POLICE STATION AWAITING INTERROGATION, AND AFTER CLEARLY ARTICULATING ON THREE SEPA RATE OCCASIONS REQUESTS FOR COUNSEL WHICH WERE DENIED. Finding no error, we affirm. During the early morning hours of February 28, 1981, the accused and eight others were apprehended at Aberdeen Proving Grounds, Maryland, on suspicion of wrongful possession of a controlled substance. The nine suspects were transported to the military police station where processing and interrogation were conducted by Military Police Investigator (MPI) Dennis Allinder. Sergeant Faron Slye, a military policeman who assisted in the apprehension, testified that shortly after arrival at the station the accused “said that he didn’t want to make a statement; that he requested a lawyer.” Slye responded, “[F]ine, I will relay this information, this message, to the investigator.” Slye “explained to him that all that we were going to be doing was that he was going to be read his rights and a field interview worksheet taken on him.” Later on the accused made a second re.quest to Slye to see a lawyer, and Slye said he would relay the request to MPI Allinder. Slye testified that he did in fact inform Allinder of the accused’s requests. MPI Allinder testified that he did not recall anyone informing him that the accused wanted to" }, { "docid": "4999005", "title": "", "text": "apprehended by Sergeant Faron Slye, who had arrived at the crime scene to assist another military policeman in apprehending nine soldiers suspected of possessing illegal drugs. Appellant was then taken to the military police investigators’ offices for “processing.” Almost immediately he voiced a request for an attorney; but, in response, Slye stated “that all” he was going to do was read him his rights and fill out a field interview sheet. Slye then recorded certain information about Goodson on the field-interview worksheet; and again appellant asked to see a lawyer. Slye told him that the request had been referred to the investigator on duty, MPI Allinder. These events occurred about 2:30 a.m. on February 28, 1981; but because there were a large number of suspects, appellant waited until about noon before Allinder interviewed him. Meanwhile, about daybreak, he asked another investigator if he could use a telephone to contact a “JAG”; but he was told that he could not call “the on-duty JAG officer.” When Allinder finally interviewed appellant, he used an Army Form 3881 (Rights Warning Procedure/Waiver Certificate) to advise Goodson of his rights. Thereupon, appellant waived his right to remain silent and to have counsel present and made a statement admitting abuse of a controlled substance. Appellant did not ask Allinder if he could see an attorney or mention that previously he had asked for a lawyer. At trial, Goodson testified that, when he was interviewed by Allinder, he had not requested an attorney because he did not believe that he would be able to speak with one “[b]ecause it was already denied to me, two or three times.” When this Court made its original decision, the lead opinion took the position that Goodson’s various requests for an attorney — made prior to his interview by MPI Allinder — were inoperative to bring Edwards v. Arizona, supra, into play. Upon reexamining the facts, we now are persuaded that this opinion gave excessive weight to subsequent events and too little weight to the close relationship between the events that occurred before Goodson requested counsel and the interview which took" }, { "docid": "12099843", "title": "", "text": "police office was located—at about 2:45 a.m.; but he did not interview Goodson until about 9 hours later. In the interval, he interviewed six of the other suspects. Allinder did not recall anyone stating to him that Goodson had requested counsel, and he commenced his interview of appellant by advising him of his rights on a DA Form 3881 — a “Rights Warning Procedure/Waiver Certificate.” After being so advised, Goodson never indicated that he wanted to see a lawyer or wished to remain silent; and he did not reveal that previously he had requested counsel. Goodson, after being warned, made a verbal statement to Allinder. Special Agent Robert Tilghman of the Criminal Investigation Division, and Specialist Four John Tivalt, another military police investigator, offered testimony corroborating Allinder’s account that he had not been notified of Goodson’s request for counsel. Appellant testified on the motion to suppress that, after being apprehended and “strip-searched,” he had asked Sergeant Slye for a lawyer and Slye “said he didn’t know any and he talked to” Allinder. Then Slye told Goodson “to go back and sit down in the hallway,” and “he told me I couldn’t have one.” After about 10 or 15 minutes, appellant “went and asked to call and Investigator Allinder, he told me that the acting JAG on duty was just for their use only and I couldn’t use him.” Goodson remained seated in the hall and was able to overhear the discussions taking place between the investigators and other suspects, since “[t]he majority of the time the hallway door was left open so we could hear.” When Allinder finally called him in, “[h]e already knew everything”; and Good-son gave an oral statement. He did not renew his request for a lawyer, because “I didn’t think I would get one”; counsel “was already denied to me, two or three times.” On the following Monday afternoon, appellant was called to the office of his company commander, Captain Fox; then he did not ask for a lawyer or remain silent, because “I thought I was already hung, sir, I just didn’t stand a chance" }, { "docid": "12099853", "title": "", "text": "is entitled to a lawyer during custodial interrogation and requests counsel a moment before his Miranda rights are explained, he may thereafter be interrogated by the police without counsel, so long as the request is not repeated; but if the Miranda warning is given and then the suspect asks for a lawyer, interrogation must halt indefinitely. I cannot believe that important constitutional rights of an accused — like his right to remain silent or to have legal counsel — hinge on such fine temporal distinctions. Ill In refusing to suppress Goodson’s written statement to his company commander, Captain Fox, the trial judge proceeded on the premise that the earlier verbal statement to Allinder had been lawfully obtained. Thus, he had no occasion to make findings as to whether any illegality in taking the first statement would taint the second statement. Absent such findings, I certainly have no grounds at this time to conclude that the written statement to Captain Fox was admissible. Indeed, Good-son’s testimony tends to show that the statement to his company commander was tainted. Because receipt in evidence of the two pretrial statements made by appellant clearly affected the findings of guilty as to the Additional Charge and all of its specifications, I would reverse the decision of the Court of Military Review thereon. According to the principal opinion: \"If the investigator here had been informed of the earlier requests for counsel — and there is a conflict in the evidence that he had — then he should have discussed the matter more fully with the accused. However, the accused also had an obligation to renew his request at the proper time.” 18 M.J. 243, 249. I am uncertain about the logical basis for imposing on Allinder any obligation to discuss with Goodson his request for counsel, since elsewhere the principal opinion seems to treat this request as immaterial because it was premature. If, however, the investigator had any obligation to discuss the matter with appellant, then the principal opinion should order a hearing to determine whether Allinder had, in fact, been informed of the three requests" }, { "docid": "4998718", "title": "", "text": "1981, at approximately 1630, appellant was called to his company commander’s office. Prior to her meeting with appellant, CPT Fox had been informed by MPI Allinder that eight soldiers, including appellant, had been apprehended for involvement with drugs. Also prior to her discussion with appellant, CPT Fox went to the MP station and read the “blotter” report concerning appellant. Although not knowing appellant had been questioned, CPT Fox was “sure that he was questioned____” Record at 67. CPT Fox was never told appellant had invoked counsel. When appellant reported to CPT Fox, he was read the Article 31/Tempia rights, did not again invoke counsel rights or inform CPT Fox he had previously asserted those rights, and made an incriminating statement. II. Statement to CPT Fox In United States v. Reeves, 20 M.J. 234 (C.M.A.1985), the Court of Military Appeals remanded the case to this court to determine, in part, whether certain statements made to a company commander had been initiated by appellant. On remand, this court was presented the argument that the “bright line rule” of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), was inapplicable to “discussions with military commanders.” This court refused to accept that position, found that Edwards was applicable in an accused/commander situation, and resolved the remand issue against the government. United States v. Reeves, 21 M.J. 768 (A.C.M.R.1985). When the case was returned to the Court of Military Appeals, the findings of guilty and the sentence were set aside. United States v. Reeves, 21 M.J. 391 (C.M.A.1985) (summary disposition). The analysis used by this court in Reeves is equally applicable here. Our analysis begins with the accepted proposition that “the different character of the military community and of the military mission requires a different application” of certain constitutional protections. See Brown v. Glines, 444 U.S. 348, 354, 100 S.Ct. 594, 599, 62 L.Ed.2d 540 (1980), quoting Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2567, 41 L.Ed.2d 439 (1974); United States v. Thomas, 21 M.J. 928, 932 (A.C.M.R.1986). Because of that “different application”, and the military obligation of" }, { "docid": "4998717", "title": "", "text": "Military Appeals, Goodson II, 22 M.J. at 23, to consider, inter alia, whether appellant’s statement to his company commander, made subsequent to the statement to MPI Allinder, is independently admissible. We hold the statement made to the company commander, Captain (CPT) Fox, was inadmissible. I. Facts The facts surrounding appellant’s apprehension and his statements to Sergeant Slye and MPI Allinder are sufficiently set out in Goodson II, 22 M.J. at 22-23. It is important, however, to more specifically describe the events leading to appellant’s statement to CPT Fox. Appellant was apprehended at approximately 0230 on Saturday, 28 February 1981. Almost immediately after being apprehended, appellant requested an attorney. Twice more, before his statement to MPI Allinder, appellant requested counsel. Appellant testified that, following the last request for a “JAG,” he was told by MPI Allinder “that the acting JAG on duty was just for their [the investigators’] use only and [that appellant] couldn’t use him.” Appellant was detained at the military police (MP) station until approximately 1200 on Saturday. On the following Monday, 2 March 1981, at approximately 1630, appellant was called to his company commander’s office. Prior to her meeting with appellant, CPT Fox had been informed by MPI Allinder that eight soldiers, including appellant, had been apprehended for involvement with drugs. Also prior to her discussion with appellant, CPT Fox went to the MP station and read the “blotter” report concerning appellant. Although not knowing appellant had been questioned, CPT Fox was “sure that he was questioned____” Record at 67. CPT Fox was never told appellant had invoked counsel. When appellant reported to CPT Fox, he was read the Article 31/Tempia rights, did not again invoke counsel rights or inform CPT Fox he had previously asserted those rights, and made an incriminating statement. II. Statement to CPT Fox In United States v. Reeves, 20 M.J. 234 (C.M.A.1985), the Court of Military Appeals remanded the case to this court to determine, in part, whether certain statements made to a company commander had been initiated by appellant. On remand, this court was presented the argument that the “bright line rule”" }, { "docid": "4999004", "title": "", "text": "Opinion of the Court PER CURIAM: After our original decision in this case, United States v. Goodson, 18 M.J. 243 (C.M.A.1984), appellant petitioned the United States Supreme Court for a writ of certiorari. The writ was granted; and the Supreme Court remanded the case to us for further consideration in light of its decision in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Goodson v. United States, — U.S. -, 105 S.Ct. 2129, 85 L.Ed.2d 493 (1985). As directed by the Supreme Court, we have now reevaluated the case in light of the Smith decision. Also, we have considered subsequent decisions of this Court which involve the applicability of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See United States v. Reeves, 20 M.J. 234 (C.M.A.1985); United States v. Harris, 19 M.J. 331 (C.M.A.1985). Now we are convinced that this Court erred when it ruled that appellant’s statement to Military Police Investigator (MPI) Dennis Allinder was admissible in his trial by court-martial. Goodson initially was apprehended by Sergeant Faron Slye, who had arrived at the crime scene to assist another military policeman in apprehending nine soldiers suspected of possessing illegal drugs. Appellant was then taken to the military police investigators’ offices for “processing.” Almost immediately he voiced a request for an attorney; but, in response, Slye stated “that all” he was going to do was read him his rights and fill out a field interview sheet. Slye then recorded certain information about Goodson on the field-interview worksheet; and again appellant asked to see a lawyer. Slye told him that the request had been referred to the investigator on duty, MPI Allinder. These events occurred about 2:30 a.m. on February 28, 1981; but because there were a large number of suspects, appellant waited until about noon before Allinder interviewed him. Meanwhile, about daybreak, he asked another investigator if he could use a telephone to contact a “JAG”; but he was told that he could not call “the on-duty JAG officer.” When Allinder finally interviewed appellant, he used an Army Form 3881" }, { "docid": "4998726", "title": "", "text": "164 (C.M.A.1984). The findings of guilty of Specification 1 of the Charge and of the Additional Charge and its three specifications are set aside. Specification 1 of the Charge and the Additional Charge and its specifications are dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of errors noted and the entire record, the court affirms only so much of the sentence as provides for confinement for three months, forfeiture of $334.00 pay per month for three months, and reduction to the grade of E-l. Senior Judge DeFORD and Judge WILLIAMS concur. . Uniform Code of Military Justice art. 31, 10 U.S.C. § 831 (1982) [hereinafter cited as UCMJ]; United States v. Tempia, 37 C.M.R. 249 (C.M.A.1967). . This court’s opinion on remand, 21 M.J. 768 (A.C.M.R.1985) is also published as an appendix to our higher court’s summary disposition. 21 M.J. 391 app. (C.M.A.1985). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Indeed, CPT Fox recognized her duty to conduct a preliminary inquiry. The following excerpts from the record are illustrative: Q: Your questioning of the accused, was that done on behalf of any military police investigators? A: No. Q: No one asked you to go ahead and question these people? A: No. It is my responsibility as the Commander. Record at 64 (emphasis added). Q: So the purpose of your conducting the interview at that time was to— A: Gain as much information as I possibly could concerning the offense. Record at 69. . Should the suspect answer falsely, he should not be permitted to benefit from the falsehood. See Harris, 19 M.J. at 343 (Cox, J., concurring) . Because of our decision, we need not reach the issue whether, if the statement to CPT Fox was deemed independently admissible, the holding in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), mandates that the statement to CPT Fox was not tainted by the illegally obtained statement to MPI Allinder. The government argues the Edwards violation was mere \"procedural” error which was cured" }, { "docid": "12099842", "title": "", "text": "going to get a lawyer, and I said I had relayed the information on to Investigator Allinder and I told Investigator Allinder that Specialist Goodson wanted a lawyer and at this time he said he knew he needed a lawyer and was trying to catch up on the paperwork.” However, up to this point appellant had not been questioned or read his rights, and with the other suspects he was “kept down the hallway just sitting in chairs” while “[w]aiting to be interviewed by Investigator Allinder.” Slye had never seen Goodson before that night; but on this occasion he had more contact with him than with any of the other suspects. Investigator Allinder had spoken with Goodson and the other suspects at about 2:30 a.m. at the Swan Creek area. This conversation consisted of Allinder’s identifying himself as an investigator and explaining to the nine suspects “that they were all under apprehension for the charges” and that “they would be transported to Building 2004 for processing.” According to Allinder, they reached that building—where the military police office was located—at about 2:45 a.m.; but he did not interview Goodson until about 9 hours later. In the interval, he interviewed six of the other suspects. Allinder did not recall anyone stating to him that Goodson had requested counsel, and he commenced his interview of appellant by advising him of his rights on a DA Form 3881 — a “Rights Warning Procedure/Waiver Certificate.” After being so advised, Goodson never indicated that he wanted to see a lawyer or wished to remain silent; and he did not reveal that previously he had requested counsel. Goodson, after being warned, made a verbal statement to Allinder. Special Agent Robert Tilghman of the Criminal Investigation Division, and Specialist Four John Tivalt, another military police investigator, offered testimony corroborating Allinder’s account that he had not been notified of Goodson’s request for counsel. Appellant testified on the motion to suppress that, after being apprehended and “strip-searched,” he had asked Sergeant Slye for a lawyer and Slye “said he didn’t know any and he talked to” Allinder. Then Slye told" }, { "docid": "12099819", "title": "", "text": "his rights again and made a written statement which he later swore to before the battalion adjutant. The accused never asked for counsel from her, and she did not know of his earlier requests. After taking the statement, she called the defense counsel and made arrangements for the accused to see him. The accused confirmed that he did not “ask for a lawyer” from Captain Fox, since “I thought I was already hung, sir, I just didn’t stand a chance because they already knew.” After argument from counsel the military judge denied the motion to suppress the statements to Allinder and Fox, and made these findings: 1. That in the early morning hours of 28 February 1981 the accused was apprehended by military police and transported to building 2004, Aberdeen Proving Ground, Maryland for interrogation, arriving at approximately 0230 hours. 2. That the interrogation of the nine suspects resulting from the apprehension was conducted by one agent, MPI Allinder, and that the accused was not interviewed by Allinder until approximately 1200 hours, some nine to ten hours after the initial apprehension. During this wait the accused was held with the other suspects in a waiting area that was adjacent to the Military Police Investigator’s offices. The suspects were not cuffed or placed in cells while awaiting interviews. 3. During the wait to be interviewed and [to have] their rights explained by the MPI Agent the accused requested to see a lawyer and permission to call a lawyer approximately three times in the first two hours. He was told that he could not see a lawyer at that time and that the on-duty JAG officer could not be called by the accused. 4. At one point during the wait the accused was informed that he should not make any statements and sign anything until his rights were read to him by the MPI Agent. 5. At approximately 1200 hours the accused’s turn came to be interviewed by MPI Allinder who proceeded to explain fully what the accused was suspected of and what his rights were. After informing the accused of his" }, { "docid": "4998727", "title": "", "text": "The following excerpts from the record are illustrative: Q: Your questioning of the accused, was that done on behalf of any military police investigators? A: No. Q: No one asked you to go ahead and question these people? A: No. It is my responsibility as the Commander. Record at 64 (emphasis added). Q: So the purpose of your conducting the interview at that time was to— A: Gain as much information as I possibly could concerning the offense. Record at 69. . Should the suspect answer falsely, he should not be permitted to benefit from the falsehood. See Harris, 19 M.J. at 343 (Cox, J., concurring) . Because of our decision, we need not reach the issue whether, if the statement to CPT Fox was deemed independently admissible, the holding in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), mandates that the statement to CPT Fox was not tainted by the illegally obtained statement to MPI Allinder. The government argues the Edwards violation was mere \"procedural” error which was cured by the subsequent reading of Miranda rights, citing Oregon v. Elstad, 105 S.Ct. at 1292. Cf. United States v. Cherry, 794 F.2d 201, 207 (5th Cir.1986). That position, however, seems in conflict with the Supreme Court’s opinion in Oregon v. Elstad, 105 S.Ct. at 1295-1296 n. 3. . The errors personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) are cured by our decretal paragraph." }, { "docid": "12099839", "title": "", "text": "brought the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), into the field of military justice, the accused had been advised of his right to counsel prior to custodial interrogation and had asked for counsel. Instead, under then current regulations of the Air Force, he was referred to the Staff Judge Advocate who merely explained his legal rights but specifically refused to enter into an attorney-client relationship with him. We held that this procedure was inadequate to comply with the Miranda guarantees. . See United States v. Tempia, supra; cf. United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966); United States v. Gunnels, 8 U.S.C. M.A. 130, 23 C.M.R. 354 (1957). FLETCHER, Judge (concurring in the result): See my opinion in United States v. Hill, 5 M.J. 114, 117 (C.M.A. 1978). EVERETT, Chief Judge (dissenting): I Before receiving pleas, the military judge held a hearing on a defense motion to suppress “all statements given by the accused subsequent to his initial request for counsel.” Sergeant Faron R. Slye, the first government witness on this motion, testified that, in performing his duties as a military policeman, he had been involved in the apprehension of appellant in the early morning hours of February 28, 1981. He was a back-up unit, rendering assistance to a unit who had a vehicle stopped in the Swan Creek area of Aberdeen Proving Grounds, Maryland. They had, I think, nine suspects who were suspected of possessing marijuana and/or drugs. Slye had “searched ... [appellant] for weapons” and had “found a suspected marijuana cigarette and I think two types of suspected dangerous drugs.” From the Swan Creek area, the accused and the other suspects had been transported to the MPI office, where he remained “[u]ntil approximately eleven o’clock the next day.” After reaching the MPI office, Goodson had been “released from his handcuffs” and stayed “both standing and sitting” with some of the other suspects. Slye had some conversation with Military Police Investigator Dennis Allinder, who until 8:30 a.m. was the only investigator present and was handling the investigation" }, { "docid": "12099816", "title": "", "text": "and eight others were apprehended at Aberdeen Proving Grounds, Maryland, on suspicion of wrongful possession of a controlled substance. The nine suspects were transported to the military police station where processing and interrogation were conducted by Military Police Investigator (MPI) Dennis Allinder. Sergeant Faron Slye, a military policeman who assisted in the apprehension, testified that shortly after arrival at the station the accused “said that he didn’t want to make a statement; that he requested a lawyer.” Slye responded, “[F]ine, I will relay this information, this message, to the investigator.” Slye “explained to him that all that we were going to be doing was that he was going to be read his rights and a field interview worksheet taken on him.” Later on the accused made a second re.quest to Slye to see a lawyer, and Slye said he would relay the request to MPI Allinder. Slye testified that he did in fact inform Allinder of the accused’s requests. MPI Allinder testified that he did not recall anyone informing him that the accused wanted to see an attorney. He was the only investigator on duty at the time, and he interviewed the suspects singularly. He did not get to the accused until approximately nine hours later. When the accused came into his office, Allinder “advised him of his rights on the DA Form 3881, asked him if he understood, which he said he did.” The accused initialed several places on the form, including the acknowledgment that he understood his “right to talk to a lawyer before or after questioning or have a lawyer present with me during questioning.” The accused signed the form in the section entitled “Waiver” and signified that he was “now willing to discuss the offense(s) under investigation ... and make a statement without talking to a lawyer first and without having a lawyer with me.” Allinder stated that the accused never requested a lawyer, never indicated that he wished to remain silent, and never indicated that he had previously asked to see a lawyer. The accused offered a different version of the events of the morning." }, { "docid": "12099844", "title": "", "text": "Goodson “to go back and sit down in the hallway,” and “he told me I couldn’t have one.” After about 10 or 15 minutes, appellant “went and asked to call and Investigator Allinder, he told me that the acting JAG on duty was just for their use only and I couldn’t use him.” Goodson remained seated in the hall and was able to overhear the discussions taking place between the investigators and other suspects, since “[t]he majority of the time the hallway door was left open so we could hear.” When Allinder finally called him in, “[h]e already knew everything”; and Good-son gave an oral statement. He did not renew his request for a lawyer, because “I didn’t think I would get one”; counsel “was already denied to me, two or three times.” On the following Monday afternoon, appellant was called to the office of his company commander, Captain Fox; then he did not ask for a lawyer or remain silent, because “I thought I was already hung, sir, I just didn’t stand a chance because they already knew.” The statement he gave Captain Fox was more or less like the verbal statement he already had given Allinder. After hearing the evidence and argument on the motion to suppress, the judge made various findings. Among them was a finding that, while waiting to be interviewed, Goodson had “requested to see a lawyer and permission to call a lawyer approximately three times in the first two hours,” but “[h]e was told that he could not see a lawyer ... and that the on-duty JAG officer could not be called by” him. The judge made no finding as to whether Sergeant Slye had informed Allinder of appellant’s request or whether Allinder otherwise knew of the request. However, he made this further finding that is especially significant: [I]n relation to the 28th of February, ... the accused’s initial request for a lawyer made soon after he was brought to the station to talk to a lawyer was not made at a time when he had full knowledge of his rights and was not" }, { "docid": "16010725", "title": "", "text": "OPINION OF THE COURT LEWIS, Judge: On appeal the principal issue is whether the trial judge committed error in refusing to suppress appellant’s oral and written pretrial statements allegedly obtained in violation of his right to counsel. We affirm. In the early morning hours of 28 February 1981, the appellant and eight others were apprehended at Aberdeen Proving Grounds, Maryland, for use and possession of marihuana. At about 0230 hours, they were transported to the military police station where they were placed in custody. Within fifteen minutes after they arrived at the station, the appellant stated that he did not want to make a statement and that he wanted a lawyer. Within the next two hours, the appellant twice repeated his request to see a lawyer and on each occasion the appellant was told that he could not see a lawyer at that time. At about 1200 hours, some nine to ten hours after the initial apprehension, Military Police Investigator (MPI) Dennis Allinder called the appellant into his office. Their meeting was the first attempt by the Government to interrogate appellant since his apprehension. Allinder read and explained the appellant’s Miranda and Article 31, 10 U.S.C. § 831 rights to him. The appellant indicated both his understanding of those rights as expressed by Allinder and his desire to make a statement explaining his involvement. While he discussed the offenses with Allinder, appellant never requested a lawyer or indicated that he had previously requested counsel. Appellant’s inculpating oral statement was offered into evidence. On 2 March the appellant was called into the office of his company commander, Captain Candace Fox, and questioned concerning his involvement. Following proper warnings the appellant rendered a written inculpating statement. This too was offered into evidence. At trial, the appellant moved to suppress both his oral and written post-arrest statements on a number of grounds including the contention that any interrogation after he had requested counsel after apprehension was impermissible. The trial judge ruled against him and admitted both statements. “[A]n accused . . . [once] having expressed his desire to deal with the police only" }, { "docid": "12099840", "title": "", "text": "R. Slye, the first government witness on this motion, testified that, in performing his duties as a military policeman, he had been involved in the apprehension of appellant in the early morning hours of February 28, 1981. He was a back-up unit, rendering assistance to a unit who had a vehicle stopped in the Swan Creek area of Aberdeen Proving Grounds, Maryland. They had, I think, nine suspects who were suspected of possessing marijuana and/or drugs. Slye had “searched ... [appellant] for weapons” and had “found a suspected marijuana cigarette and I think two types of suspected dangerous drugs.” From the Swan Creek area, the accused and the other suspects had been transported to the MPI office, where he remained “[u]ntil approximately eleven o’clock the next day.” After reaching the MPI office, Goodson had been “released from his handcuffs” and stayed “both standing and sitting” with some of the other suspects. Slye had some conversation with Military Police Investigator Dennis Allinder, who until 8:30 a.m. was the only investigator present and was handling the investigation all by himself. Slye testified: “I had talked to the accused and he told me that he requested a lawyer several times and each time I informed Investigator Allinder that the guy requested a lawyer.” This sequence of events occurred “[approximately three times.” Appellant had been brought to the office about 2:00 a.m. and had first asked for a lawyer about 15 minutes later. Slye testified: “He said that he didn’t want to make a statement; that he requested a lawyer. I said, fine, I will relay this information, this message, to the investigator.” Sergeant Slye did not ask Goodson for a statement, but he did seek to obtain information to complete a “field interview worksheet,” which “consists of questions in regards to full name, your rank, your Social Security Number, your date of birth and place of birth.” At that time appellant asked for a lawyer again, and Slye brought this to Allinder’s attention. Once again—“early in the morning” when “[i]t was starting to get daylight out” — Goodson “asked me [Slye] was he" }, { "docid": "4998716", "title": "", "text": "OPINION OF THE COURT ON REMAND KENNETT, Judge: This case has a long and often reported history. Appellant was originally convicted of several drug-related offenses. His conviction was affirmed by this court, United States v. Goodson, 14 M.J. 542 (A.C.M.R.1982), and then by the United States Court of Military Appeals, United States v. Goodson, 18 M.J. 243 (C.M.A.1984). Thereafter, appellant petitioned the United States Supreme Court for writ of certiorari. The Supreme Court granted the writ and remanded the case to the Court of Military Appeals for further consideration in light of Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Goodson v. United States, — U.S. -, 105 S.Ct. 2129, 85 L.Ed.2d 493 (1985). On further review, the Court of Military Appeals re versed its earlier decision concerning the admissibility of appellant’s statement to Military Police Investigator (MPI) Allinder. United States v. Goodson, 22 M.J. 22 (C.M.A.) (Goodson II), petition for reconsideration denied, 22 M.J. 247 (C.M.A.1986). The case is now before this court on remand from the Court of Military Appeals, Goodson II, 22 M.J. at 23, to consider, inter alia, whether appellant’s statement to his company commander, made subsequent to the statement to MPI Allinder, is independently admissible. We hold the statement made to the company commander, Captain (CPT) Fox, was inadmissible. I. Facts The facts surrounding appellant’s apprehension and his statements to Sergeant Slye and MPI Allinder are sufficiently set out in Goodson II, 22 M.J. at 22-23. It is important, however, to more specifically describe the events leading to appellant’s statement to CPT Fox. Appellant was apprehended at approximately 0230 on Saturday, 28 February 1981. Almost immediately after being apprehended, appellant requested an attorney. Twice more, before his statement to MPI Allinder, appellant requested counsel. Appellant testified that, following the last request for a “JAG,” he was told by MPI Allinder “that the acting JAG on duty was just for their [the investigators’] use only and [that appellant] couldn’t use him.” Appellant was detained at the military police (MP) station until approximately 1200 on Saturday. On the following Monday, 2 March" }, { "docid": "4999006", "title": "", "text": "(Rights Warning Procedure/Waiver Certificate) to advise Goodson of his rights. Thereupon, appellant waived his right to remain silent and to have counsel present and made a statement admitting abuse of a controlled substance. Appellant did not ask Allinder if he could see an attorney or mention that previously he had asked for a lawyer. At trial, Goodson testified that, when he was interviewed by Allinder, he had not requested an attorney because he did not believe that he would be able to speak with one “[b]ecause it was already denied to me, two or three times.” When this Court made its original decision, the lead opinion took the position that Goodson’s various requests for an attorney — made prior to his interview by MPI Allinder — were inoperative to bring Edwards v. Arizona, supra, into play. Upon reexamining the facts, we now are persuaded that this opinion gave excessive weight to subsequent events and too little weight to the close relationship between the events that occurred before Goodson requested counsel and the interview which took place later that day. Implicit in Sergeant Slye’s action advising appellant of his rights and preparing the field-interview sheet was a determination that appellant was a suspect and would be interviewed concerning the drug offenses. Goodson was in custody and had addressed three requests for counsel to the person in apparent authority. He had waited for several hours while interviews were under way with some of the others who had been apprehended at the same time. Under these circumstances, it is artificial to draw a distinction between the formal interview with Allinder and these events which led up to it. Even if under some other circumstances a request for counsel made prior to the commencement of interrogation might not bring Edwards v. Arizona, supra, into play, we have no doubt that here appellant’s requests had this effect. When Goodson was interviewed by MPI Allinder, he did not request a lawyer or mention his earlier request for an attorney. However, as the Supreme Court has made clear in Smith v. Illinois, supra, this later conduct did" }, { "docid": "12099818", "title": "", "text": "He said that, upon arrival at the station, Sergeant Slye “told me not to sign it [a statement form], just say I didn’t want to speak.” He related the two times he asked Slye for counsel, but said that Slye said he “couldn’t have one.” He further testified that he “asked to call and Investigator Allinder, he told me that the acting JAG on duty was just for their use only and I couldn’t use him.” However, he admitted that when he was “called ... in for questioning,” he did not request a lawyer because “[t]hey already knew” and he “didn’t think ... [he would] get one.” The accused made an incriminating oral statement to Allinder, and it was used to prove the contested allegations. On the 2nd of March, the accused’s company commander, Captain Candace Fox, having been informed of the incident, called the accused into her office. She advised him of his rights as set out on DA Form 3881. She was unaware of the events at the police station. The accused waived his rights again and made a written statement which he later swore to before the battalion adjutant. The accused never asked for counsel from her, and she did not know of his earlier requests. After taking the statement, she called the defense counsel and made arrangements for the accused to see him. The accused confirmed that he did not “ask for a lawyer” from Captain Fox, since “I thought I was already hung, sir, I just didn’t stand a chance because they already knew.” After argument from counsel the military judge denied the motion to suppress the statements to Allinder and Fox, and made these findings: 1. That in the early morning hours of 28 February 1981 the accused was apprehended by military police and transported to building 2004, Aberdeen Proving Ground, Maryland for interrogation, arriving at approximately 0230 hours. 2. That the interrogation of the nine suspects resulting from the apprehension was conducted by one agent, MPI Allinder, and that the accused was not interviewed by Allinder until approximately 1200 hours, some nine to" } ]

[ { "docid": "23539434", "title": "", "text": "judgment as a matter of law at the end of the City’s “reopening” statement, but that motion was denied and never renewed. This court has held that failure to comply with Rule 50(b) precludes a challenge to the sufficiency of the evidence on appeal, Farley Transportation Co., Inc. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1345-47 (9th Cir.1985), and that “the requirement that the motion be made at the close of all the evidence is to be strictly observed,” id. at 1346. In their reply brief, the Patels argue that an exception is made where there is no new evidence presented (or the evidence presented is very brief) after the motion is made, and thus, no one is misled or prejudiced by a formal failure to renew the motion. The only authority cited for this proposition is a 1989 District of Nebraska decision. We need not decide whether this exception exists because it does not apply here. After the Patels’ motion was denied, they called six witnesses, each of whom was subjected to both direct and cross examination, and read into evidence the prior testimony of one witness; this presentation of evidence occupies nearly 70 transcript pages. After the plaintiffs rested their ease, the City read into evidence deposition testimony by one witness and recalled one of the Patels’ witnesses, who was again subjected to both direct and cross examination. The Patels’ appeal does come within another “limited exception to the rule against review of the sufficiency of the evidence in the absence of a motion for a directed verdict: where there is ‘plain error apparent on the face of the record that, if not noticed, would result in a manifest miscarriage of justice’.” United States v. 33.5 Acres of Land, 789 F.2d 1396, 1400 (quoting Charles Alan Wright & Arthur R. Miller, 9 Federal Practice and Procedure § 2536 at 593 (1971)) (9th Cir.1980). This exception, however, permits only “ ‘extraordinarily deferential’ ” review that is “ ‘limited to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency’.” Benigni v. City of" } ]

[ { "docid": "7881730", "title": "", "text": "finding that Kusar lacked probable cause to enter the house. We reject plaintiffs’ claim for several reasons. First, and most important, plaintiffs are precluded from raising this issue on appeal, since they failed to object to the challenged instruction in the district court. See United States v. Ledesma, 632 F.2d 670 (7th Cir. 1980). Rule 51 of the Federal Rules of Civil Procedure explicitly provides that “[n]o party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict. ...” Fed.R.Civ.P. 51. The salutary purpose of this requirement is to permit the district judge to consider and correct any errors before the jury begins its deliberations, thus avoiding the delay and expense necessitated by a retrial. Where, as here, a party has been afforded proper opportunity to object to instructions in the district court, his failure to do so precludes appellate review. United States v. Wright, 542 F.2d 975, 981 (7th Cir. 1976), cert. denied 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977). Plaintiffs argue, however, that Rule 51 must be read in conjunction with Rule 46 of the Federal Rules of Civil Procedure, and that, taken together, these rules do not require objections to jury instructions in all situations. Alternatively, plaintiffs contend that notwithstanding the applicability of Rule 51, they are entitled to reversal under the doctrine of “plain error.” We reject these contentions. Rule 46 merely abolishes the necessity for formal exceptions to court rulings or orders. It does not abrogate the requirement that a litigant communicate his objection to the district court at the time a ruling is made. Thus, nothing in Rule 46 modifies the requirements of Rule 51, provided adequate opportunity for objection has been afforded. As to plaintiffs’ allegation of plain error, we acknowledge that an appellate court has discretion to disregard Rule 51 when the claim of error is obvious and to ignore it may result in a miscarriage of justice. See Platis v. Stockwell, 630 F.2d 1202 (7th Cir. 1980); United States v. Atkinson, 297 U.S. 157," }, { "docid": "979389", "title": "", "text": "elements of fraud were central to this case and the proper standard of proof to be applied was critical. Thus, the district court’s erroneous jury instructions would normally require reversal. The troublesome question posed by the plaintiffs, however, is that counsel for Minuteman did not raise the issue of the erroneous charge during the trial; he took no exceptions and in fact acquiesced in the charge. The plaintiffs, therefore, assert that the defendant is precluded by Federal Rule of Civil Procedure 51 from raising it now. Rule 51 reads in part, “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” There is, however, a judicially created exception to Rule 51, the “plain error” doctrine, which this circuit recognizes. For example, in McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir.1960), this court found that the trial court in its jury instructions had failed to explain the application of the principles of law to the various possible factual conclusions. The court determined that Rule 51 did not preclude the raising of this issue on appeal, though no objection had been made to the trial court’s instructions, because the error was fundamental. This court’s application of the plain error doctrine was explicated in United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978) (footnote omitted), rev’d on other grounds, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979): [W]e have the discretion to review instructions sua sponte if the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice. Plaintiffs’ argument that the error in the charge is not plain or fundamental error is refuted by this court’s ruling in Ratay v. Lincoln National Life Insurance Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S." }, { "docid": "22327827", "title": "", "text": "Discovery to Amend Complaint. Defendants filed a Motion for Entry of Order of Final Dismissal and Entry of Judgment based on Plaintiffs’ failure to file an amended complaint within sixty days of the dismissal. The district court granted Defendants’ motion without oral argument, dismissing the case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failing to obey the court’s order to file an amended complaint within sixty days. The court also denied Plaintiffs’ motion. Plaintiffs now timely appeal the dismissal of their case with prejudice to this court. II The first issue we must resolve is whether Judge Marshall’s “minute order” was an order, the noncompliance with which justified dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. We review the district court’s dismissal of a complaint pursuant to Rule 41(b) for abuse of discretion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). Whether or not the “minute order” was an order for purposes of Rule 41(b) is a question of law that we review de novo. We find that Judge Marshall’s minute order, under the circumstances of this case, was an ’“order” within the meaning of Rule 41(b), the noncompliance with which gave Judge Marshall the discretion to dismiss the complaint. Under Ninth Circuit precedent, when a plaintiff fails to amend his complaint after the district judge dismisses the complaint with leave to amend, the dismissal is typically considered a dismissal for failing to comply with a court order rather than for failing to prosecute the claim. See id. at 1260 (“In this case we address whether the district court abused its discretion in dismissing Ferdik’s case because he failed to obey the court’s order requiring him to refile a second amended complaint ... in a timely manner or face dismissal of his case.”) (emphasis added). Judge Marshall dismissed the Plaintiffs’ complaint with prejudice for failing to comply with a court order. See Order Filed on Sept. 21,1998, at 2 (\"When a party fails to comply with any district court order within the time period given for compliance, the district" }, { "docid": "8400844", "title": "", "text": "101, 83 L.Ed.2d 46 (1984). We review for abuse of discretion a trial judge’s decision to exclude evidence based on the federal rules of evidence. Locricchio v. Legal Serv. Corp., 833 F.2d 1352, 1359 (9th Cir.1987). Finally, if a party has failed to move for a directed verdict at the close of all of the evidence, we will not disturb a district court’s denial of a motion for judgment notwithstanding the verdict unless the verdict is in plain error. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.1988). Since appellants did not move for a directed verdict at the close of the evidence it is important to say a few more words about the standard of review. That standard profoundly affects our review of this case. Federal Rule of Civil Procedure 50(b) permits a party who has moved for a directed verdict to then move for a judgment notwithstanding the verdict. The rule does not make any provision for those who have not made a directed verdict motion at the close of all the evidence. However, we have held that a judgment notwithstanding the verdict should still be granted if the verdict was in plain error. “Only where there is such plain error apparent on the face of the record that failure to review would result in a manifest miscarriage of justice” should the appellate court analyze the evidence. Cabrales, 864 F.2d at 1459. That is a very stringent standard, for we will not find plain error unless it is clear from the face of the record that there was “an absolute absence of evidence” on which to base the verdict. Id. DISCUSSION Appellants have raised numerous issues which draw upon various legal principles. Due to the fact that some of those principles affect a number of the issues, we will fully discuss them when they first arise and will then simply refer back to them at later points in this opinion. The issues subtended by this case are as follows: (1) Did the district court err when it determined that due to the unconstitutionality of the" }, { "docid": "1565635", "title": "", "text": "the evidence and the verdict does not result in the miscarriage of justice” because the jury was presented with credible testimony from defendant Turner and his partner, who testified that Turner did not arrest Bizek. With regard to Crowell, the district court opined that Crowell’s claims were “a closer call” but that the credible testimony of defendant Dixon, combined with other facts presented, “supports the probable cause determination for the arrest.” The district court declined to “grant a new trial merely because a jury could have drawn different inferences or conclusions from the facts.” II The district court’s ruling on a motion for judgment notwithstanding the verdict, made under Fed.R.Civ.P. 50(b), is reviewed de novo. See Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886 (9th Cir.2002). Judgment as a matter of law is proper if the evidence, viewed in the light most favorable to the nonmoving party, permits only one reasonable conclusion. See McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir.2000). See also Murphy, 38 F.3d at 1495 (recognizing that “[w]e are required to sustain a judgment based on a jury verdict if it was supported by ... such relevant evidence as reasonable minds might accept as adequate to support a conclusion.”) (internal quotation marks omitted). It appears from the record, though neither party raises this issue, that the plaintiffs in this case did not move for a judgment as a matter of law under Fed. R.Civ.P. 50(a). The motion later made by plaintiffs pursuant to Fed.R.Civ.P. 50(b) was therefore procedurally flawed. Janes, 279 F.3d at 886-87 (recognizing that because Wal-Mart failed to move for judgment as a matter of law before submission of the case to the jury, ‘Wal-Mart failed to comply with the procedural prerequisite for renewing its motion for [judgment as a matter of law] after trial. The Ninth Circuit construes this requirement strictly”) (internal citations omitted). Ordinarily, when a party files a procedurally flawed Rule 50(b) motion, the challenge to the jury’s verdict is reviewed only for plain error and reversal is proper only to avoid a “manifest miscarriage of justice.” See id. at" }, { "docid": "22108858", "title": "", "text": "the City, it was inadmissible character evidence as against Neal intended to show that he was a “bad person” who acted in conformity with his prior bad acts. Rule 42(b) of the Federal Rules of Civil Procedure affords a district court discretion to order separate trials where such order would further convenience, avoid prejudice, or promote efficiency. In this case, we cannot say that the district court abused its discretion in concluding that bifurcation would “not significantly increase judicial efficiency” or in its conclusion that bifurcation would “result in the Court essentially trying the same case twice.” See Omnibus Order, March 8, 2000. There is clearly substantial overlap in the issues, facts, evidence, and witnesses required for Griffin’s claims against both Neal and the City. Moreover, although Neal argues at length that his rights were prejudiced by the introduction of his prior bad acts, he neither objected to the introduction of such evidence at trial; nor did he ask the district court for a limiting instruction. We do not believe that the district court committed plain error in failing to provide a limiting instruction sua sponte. United States v. Cross, 928 F.2d 1030, 1051, n. 69 (11th Cir.1991)(reviewing for plain error district court’s failure to sua sponte caution jury that testimony could not be considered as evidence of defendant’s bad character or disposition to commit the crime); United States v. Waldrip, 981 F.2d 799 (5th Cir.l993)(court’s failure to sua sponte provide a limiting instruction is plain error only when the court’s charge as a whole is so erroneous as to result in a likelihood of a grave miscarriage of justice); United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir.1993)(when defendant fails to request instruction, trial court’s failure to instruct is a ground for reversal only when it constitutes an error that is “egregious and obvious” and reversal is “necessary to redress a miscarriage of justice”); Fed.R.Evid. 105 (when evidence is admissible for one purpose but not another, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly”). In light of our determination" }, { "docid": "1565636", "title": "", "text": "to sustain a judgment based on a jury verdict if it was supported by ... such relevant evidence as reasonable minds might accept as adequate to support a conclusion.”) (internal quotation marks omitted). It appears from the record, though neither party raises this issue, that the plaintiffs in this case did not move for a judgment as a matter of law under Fed. R.Civ.P. 50(a). The motion later made by plaintiffs pursuant to Fed.R.Civ.P. 50(b) was therefore procedurally flawed. Janes, 279 F.3d at 886-87 (recognizing that because Wal-Mart failed to move for judgment as a matter of law before submission of the case to the jury, ‘Wal-Mart failed to comply with the procedural prerequisite for renewing its motion for [judgment as a matter of law] after trial. The Ninth Circuit construes this requirement strictly”) (internal citations omitted). Ordinarily, when a party files a procedurally flawed Rule 50(b) motion, the challenge to the jury’s verdict is reviewed only for plain error and reversal is proper only to avoid a “manifest miscarriage of justice.” See id. at 888. See also Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir.2001) (We will review for plain or fundamental error [in a civil case] ... where the integrity or fundamental fairness of the proceedings in the trial court is called into serious question”). This ease, however, presents additional circumstances that have not before been considered by us: Here the defendants did not object to the district court when the plaintiffs filed a Rule 50(b) motion without having filed a Rule 50(a) motion for directed verdict. Accordingly, the district court ruled on the Rule 50(b) motion as if a motion for directed verdict had been properly filed. Under these circumstances, we will follow the same standard applied by the district court. We join the unanimous authority of our sister circuits and hold that where a defendant does not object to an improperly-filed Rule 50(b) motion, and does not raise the issue of default for failure to abide Rule 50(a) before the trial court, then the procedural flaw in the Rule 50(b) motion is" }, { "docid": "23581430", "title": "", "text": "(3d ed.1997). This is to ensure that the motion is sufficiently precise to afford the opposing party and the judge the opportunity to properly respond. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1173 (3d Cir.1993). Defendants did not specifically object to or enumerate the issue of prompt remedial action in their Motion for Judgment as a Matter of Law filed at the close of Plaintiffs case, in their renewal of the motion after the jury’s verdict, or at any other time. The failure to move for a judgment as a matter of law on, or otherwise properly object to, the specific issue of prompt remedial action precludes our review of this issue on appeal. “[Ajppellate courts have discretion to hear matters not raised or argued [in the district court].\" Rademacher v. Colorado Ass’n of Soil Conservation Med. Plan, 11 F.3d 1567, 1571 (10th Cir.1993); see Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). However, the general rule is that “[t]he failure to raise the issue with the trial court precludes review except for the most manifest error.” Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991) [Hicks II]. We conclude that this case is not one where manifest injustice would result and therefore we decline to review for plain error. IV. Defendants further contend that the trial court abused its discretion by failing to grant their Motion for Remittitur. Defendants argue the jury award was excessive, even when reduced to the $200,000 statutory cap, and was the result of bias, passion, or prejudice. They assert that the evidence presented by Plaintiff cannot support the verdict, in light of the injury suffered by Plaintiff. We review the district court’s denial of a motion for remittitur for an abuse of discretion. Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1261 (10th Cir.1995). We believe the damages, as reduced, are proper. The record reflects that the district court adopted the jury’s damage figure and re-dueed it to the statutory maximum under 42 U.S.C. § 1981a(b)(3). The district court" }, { "docid": "5321122", "title": "", "text": "... would be futile.” Dell opposed plaintiffs’ request and argued the only final judgment that would be appropriate under the circumstances would be a dismissal for failure to prosecute. The district court directed further briefing on the issue of whether the action should be dismissed, and if so, on what grounds. Plaintiffs’ supplemental brief restated their position that they were not refusing to prosecute their claims but were in a “procedural bind” because they could not afford to arbitrate them claims individually, and the arbitration order was not an appealable order. Plaintiffs identified two alternatives to dismissal: (1) stay the action pending this Court’s ruling in Oestreicher v. Alienware Corp., infra, which at that time, was fully briefed and before the Court, or (2) certify the issue for interlocutory review. Dell opposed these alternatives and again argued for a dismissal for failure to prosecute. On May 21, 2008, the district court dismissed the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). II. STANDARD OF REVIEW We review a dismissal for failure to prosecute for abuse of discretion. Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.1984). We review a district court’s order compelling arbitration de novo. Davis v. O’Melveny & Myers, 485 F.3d 1066, 1072 (9th Cir.2007). III. DISCUSSION A. The District Court Abused Its Discretion When It Dismissed Plaintiffs’ Action for Failure to Prosecute. Federal Rule of Civil Procedure 41(b) provides: “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A Rule 41(b) dismissal “must be supported by a showing of unreasonable delay.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). In addition, the district court must weigh the following factors in determining whether a Rule 41(b) dismissal is warranted: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic" }, { "docid": "19117580", "title": "", "text": "that the district court abused its discretion by failing to order the jury to award nominal damages following entry of the verdict and by denying Miller’s Rule 59(e) motion to alter or amend the judgment to award nominal damages. He concedes that under Federal Rule of Civil Procedure 51, a' party waives the right to request an instruction if the party does not request the instruction before the jury retires. Appellant’s Opening Brief (App. Br.), at 9. He also acknowledges that he neither requested a nominal damages instruction nor objected to the damages instructions or the verdict form at the instructions conference. App. Br., at 3, 6. Miller further concedes that the damages instruction given to the jury was nearly identical to the one he proffered. Id. Miller, however, asks that we adopt an exception to Rule 51 that would permit a plaintiff to request nominal damages after the return of a verdict, but before dismissal of the jury, in cases where a plaintiff alleges multiple constitutional claims and one claim has damages and one does not. We affirm because the district court did not plainly err in denying either Miller’s post-verdict request to direct the jury to award nominal damages, or his Rule 59(e) motion to alter or amend the judgment to award nominal damages. We also decline to adopt an exception to Rule 51 that would permit plaintiffs to request nominal damages after the verdict is rendered. A. Miller waived the right to appeal any error in the jury instructions and verdict form because he failed to object to them. “Error cannot be based on the giving of an instruction to which the complaining party has not properly objected.” Westcott v. Crinklaw, 133 F.3d 658, 662 (8th Cir.1998) (citing Fed.R.Civ.P. 51). To overcome his failure to object to the instructions and verdict form, Miller must show that the giving of the instructions and verdict form was plain error that resulted in a “miscarriage of justice.” See Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir.1991), cert. denied, 506 U.S. 836, 113 S.Ct. 111, 121 L.Ed.2d 68 (1992); Fed." }, { "docid": "2298044", "title": "", "text": "court did not abuse its discretion in denying each of Stewart’s five motions for Rule 11 sanctions. Stewart concedes that his first motion was properly denied as moot. His second and fifth motions both attacked arguments that, far from being frivolous, prevailed before the district court. Further, there is nothing to suggest that Spirit otherwise invoked these arguments in bad faith or for any improper purpose. Finally, Stewart failed to object to the magistrate’s findings on his third and fourth motions, and is unable to demonstrate that these findings, which the record supported, resulted in manifest injustice. III. CONCLUSION For these reasons, we affirm the district court’s February 24, 2012 order dismissing Stewart’s RLA claims and denying Stewart’s motions for sanctions. AFFIRMED. . Stewart's second amended complaint raised numerous other claims under state law, but he has failed to pursue them on appeal. Therefore, we decline to consider them. Tim-son v. Sampson, 518 F.3d 870, 874 (11th Cir.2008). . In 1936, Congress extended the RLA to airline carriers. See 45 U.S.C. § 181. The parties do not dispute that Spirit is a carrier subject to the RLA. . Defendants do not contest that an implied private cause of action can exist in certain circumstances under § 152, Fourth. Thus we assume, without deciding, that such a private right of action may exist. . We review a district court’s dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) de novo. Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir.2012). . We also review de novo a district court’s grant of a motion to dismiss for failure to state a claim. Cinotto v. Delta Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir.2012). . We review rulings on Federal Rule of Civil Procedure 11 motions for sanctions for an abuse of discretion. Thompson v. Relation-Serve Media, Inc., 610 F.3d 628, 636 (11th Cir.2010). Additionally, if a party fails to object to a magistrate judge’s factual findings, this Court will not review challenges to those findings absent plain error or manifest injustice. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d" }, { "docid": "23629097", "title": "", "text": "rather a complete failure to follow the requirements of Rule 50(b).” Id. We acknowledged that this circuit “approaches such questions of technical compliance with ‘liberal spirit,’ ” however, we declined to judicially rewrite the Federal Rules of Civil Procedure. Id. Here, the district court ruled on Victoria County’s motion for directed verdict immediately after it was made. Further, although Victoria County only presented two witnesses, an entire day, rather than a few minutes, elapsed from the time the motion was made and the close of all the evidence. In addition, Pyle submitted rebuttal evidence. Because we find Giles and McCann to be controlling precedent, we conclude that Victoria County’s noncompliance with Rule 50(b) cannot be regarded as de minimis. Where a party fails to timely move for judgment as a matter of law, and such failure does not constitute a de minimis departure, “we will consider the issue as waived by the defendant and will treat the issue as being raised for the first time on appeal.” Polanco v. City. of Austin, Tex., 78 F.3d 968, 974 (5th Cir.1996). Accordingly, we review any challenge to the sufficiency of the evidence only for plain error. Id. Under the plain error standard, we will only reverse the jury’s verdict “if the judgment works a manifest miscarriage of justice.” In re Eisenhut, 245 F.2d at 482 (citation omitted). Such review requires this court to merely ascertain if the plaintiff has submitted “any evidence in support of his claim.” Id. If it is determined that no evidence supports the jury’s verdict, “we will not simply enter judgment for the defendant; instead, we must order a new trial.” Id. (citation omitted). DISCUSSION The ADA is a federal anti-discrimination statute designed “[t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d 254, 261 (5th Cir.1999). The RA was enacted “to ensure that handicapped individuals are not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.” Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988). The" }, { "docid": "11516697", "title": "", "text": "first instance, has the responsibility and duty to so supervise and conduct litigation proceedings as to afford all parties a fair and impartial trial to the end that justice is served. The record satisfies us that the trial judge followed this mandate. He made an in vestigation of the alleged misconduct of juror Strege and reached the conclusion that the verdict was not improperly influenced. Our rule is that “(a) motion for a new trial is always directed to the sound discretion of the trial court. It is only for a clear abuse of that discretion that an appellate court will reverse.” Stofer v. Montgomery Ward & Co., 8 Cir., 249 F.2d 285, 288. As we have seen, the verdict finds ample support in the evidence that was presented to the jury, and we find no abuse of discretion in the denial of a new trial. Other points relate to the admission of certain evidence, the failure of the court to permit certain exhibits to go to the jury room; the failure to grant a new trial because of alleged prejudicial argument of plaintiff’s counsel; the failure to grant a new trial because of claimed excessiveness of the verdict, and the failure of the court to properly declare the law in its instructions to the jury. Each reviewable assignment has received our careful consideration, and we fail to perceive that the action of the court complained of resulted from abuse of discretion or resulted in prejudicial error. Rule 61 of the Federal Rules of Civil Procedure provides that error in either the admission or exclusion of evidence, or error in any ruling or in anything done or omitted by the court, shall not be grounds for setting aside a verdict or for vacating or otherwise disturbing a judgment, “unless refusal to take such action appears to the court inconsistent with substantial justice.” There being no error, the judgment of the lower court is Affirmed. . The court instructed the jury that plaintiff was not negligent in the operation of his automobile at the time of the accident. No exception was" }, { "docid": "11516698", "title": "", "text": "new trial because of alleged prejudicial argument of plaintiff’s counsel; the failure to grant a new trial because of claimed excessiveness of the verdict, and the failure of the court to properly declare the law in its instructions to the jury. Each reviewable assignment has received our careful consideration, and we fail to perceive that the action of the court complained of resulted from abuse of discretion or resulted in prejudicial error. Rule 61 of the Federal Rules of Civil Procedure provides that error in either the admission or exclusion of evidence, or error in any ruling or in anything done or omitted by the court, shall not be grounds for setting aside a verdict or for vacating or otherwise disturbing a judgment, “unless refusal to take such action appears to the court inconsistent with substantial justice.” There being no error, the judgment of the lower court is Affirmed. . The court instructed the jury that plaintiff was not negligent in the operation of his automobile at the time of the accident. No exception was taken to this charge. . See Stolte v. Larkin, 8 Cir., 110 F.2d 226, 232, where the Court stated : “That statements in pleadings in the nature of admissions against interest are admissible is established not only in federal courts (citing cases), but generally (citing authority) .” See also 31 C.J.S. Evidence §§ 301, 302. . Taped statements of participants previously played to jury, and transcripts of those tapes. . Plaintiffs attorney, referring to defendants’ counsel, stated: “They defend cases all over this state.” Defendants claimed this injected insurance into the case and was grounds for mistrial. . The question of the alleged excessiveness of a verdict, raised by motion for new trial, is addressed to the sound discretion of the trial court and is not reviewable upon appeal. See American Surety Co. v. Schottenbauer, 8 Cir., 257 F.2d 6, 13-14." }, { "docid": "1833834", "title": "", "text": "questions of fact .... ” (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986))); Hultgren v. County of Lancaster, 913 F.2d 498, 504 (8th Cir. 1990) (“Under the FLSA, whether sleep time is work time is a question of fact ____” (quotation omitted)). The district court properly submitted the case to the jury for resolution of these issues, and Plaintiffs had the opportunity to litigate their position before that jury. See Metro. Life Ins. Co. v. Golden Triangle, 121 F.3d 351, 354 (8th Cir.1997). We are thus precluded from considering the district court’s denial of summary judgment on appeal. III. Plaintiffs further allege that the district court erred in denying their motion for judgment as a matter of law with respect to the drive-time, mealtime, and other overtime compensation claims. See Fed.R.Civ.P. 50(a). This court reviews a “denial of a motion for judgment as a matter of law de novo.” Heaton v. The Weitz Co., 534 F.3d 882, 887 (8th Cir.2008). When a party fails to renew a motion for judgment as a matter of law following entry of judgment under Rule 50(b), however, our review is circumscribed. Both parties cite Cross v. Cleaver for the proposition that absent a Rule 50(b) -motion, this court reviews the district court’s denial of a motion for judgment as a matter of law for plain error. See Cross v. Cleaver, 142 F.3d 1059, 1070 (8th Cir.1998) (quotations omitted) (“[This court] cannot test the sufficiency of the evidence to support the jury’s verdict beyond application of the plain error doctrine in order to prevent a manifest miscarriage of justice.”). Neither party acknowledges, however, that the Supreme Court has stated that “when a party fails to file a motion under Rule 50(b), ‘there [is] no basis for review of [the party’s] sufficiency of the evidence challenge in the Court of Appeals.’” Sw. Bell Tel., L.P., 550 F.3d at 708 (quoting Unitherm Food Sys. v. Swift Eckrich, Inc., 546 U.S. 394, 407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006)). Plaintiffs’ arguments on appeal are the same arguments that" }, { "docid": "22559021", "title": "", "text": "due process claim, the appeal from the district court’s denial is moot in light of our holding that Plaintiffs are entitled to proceed with that claim. To the extent, however, that the motion sought to alter or amend the judgment with respect to Plaintiffs’ other claims, the appeal is not moot. Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. School Dist. No. 1J, Multnomah, County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). With respect to the portion of its ruling that is not moot, the district court did not abuse its discretion in denying Plaintiffs’ motion to alter or amend its judgment. With one exception, the motion repeated legal arguments made earlier and sought to introduce facts that were available earlier in the proceedings. A district court does not abuse its discretion when it disregards legal arguments made for the first time on a motion to amend, see Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir.1995), and a party that fails to introduce facts in a motion or opposition cannot introduce them later in a motion to amend by claiming that they constitute “newly discovered evidence” unless they were previously unavailable. See GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). The only new argument in Plaintiffs’ motion to alter or amend the judgment was a contention that it was “manifestly unjust” for the district court to issue. a ruling without first obtaining and reviewing the city’s administrative record. Plain tiffs claim that this evidence (in particular, a videotape of the April 23 hearing) would have demonstrated that the property was not the “open lot” that the district court described, but was instead restricted to people with business to transact. This fact would not, however, alter Plaintiffs’ expectation of privacy. Accordingly, it was not an abuse of discretion for the district court to deny" }, { "docid": "22070096", "title": "", "text": "a rancorous public debate involving money, unions, and politics. Therefore, the statement could not give rise to a cognizable claim of defamation. Accordingly, we vacate the jury’s verdict in favor of Gilbrook and instruct the district court to enter judgment as a matter of law in favor of Schweisinger on Gilbrook’s claim of slander pe se. E. The New Trial as to Bowler Defendants’ final argument on appeal concerns the district court’s order granting plaintiff Bowler a new trial on his retaliation claims. At the close of trial, defendants filed a Rule 50(b) motion as to Bowler’s civil rights claims, on the ground that Bowler had produced no evidence showing that he had engaged in any activities protected by the First Amendment. The district court agreed with defendants’ argument but, instead of entering judgment as a matter of law in favor of defendants, the district court ordered a new trial on the ground that defendants had failed to make a timely sufficieney-of-theevidence argument as to Bowler in their Rule 50(a) motion. See Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212 (9th Cir.1997) (“We strict ly adhere to the requirements of Rule 50(b), which prohibit a party from moving for a judgment as a matter of law after the jury’s verdict unless that motion was first presented at the close of evidence.”). On appeal, defendants contend that the district court erred, because they did not proeedurally default their sufficiency-of-the evidence argument. We review the district court’s decision for abuse of discretion. See Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir.1998) (“We review a decision regarding the management of litigation for abuse of discretion.”). Our review of defendants’ Rule 50(a) motion supports their claim of no procedural default. First, defendants titled their Rule 50(a) motion “Memorandum of Points and Authorities in Support of Motion for Judgment as a Matter of Law By Individual Defendants Against Plaintiffs Gilbrook, Garrison, Herr, Raphael, Bowler, and Wilson.” (Emphasis added.) Second, footnote 6 of that pleading argues clearly for a directed verdict against Bowler on the ground of lack" }, { "docid": "1291860", "title": "", "text": "of default against them. (Pl.'s Objs., Docket Entry 43.) The Court disagrees with Plaintiff. Federal Rule of Civil Procedure 55(a) states that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk shall enter the party’s default.” Fed. R. Civ. P. 55(a). However, a defendant may move to set aside an entry of default pursuant to Rule 55(c) for “good cause.” Fed. R. Civ. P. 55(c). In determining whether good cause exists for relieving a party from a finding of default, courts consider “[1] the willfulness of the default, [2] the existence of a meritorious defense, and [3] the level of prejudice that the non-defaulting party may suffer should relief be granted.” Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir.2001). “[B]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir.1993). 1. Willfulness Plaintiffs first objection to Judge Lindsay’s R & R is that Judge Lindsay erred in finding that the Ratan Defendants’ default was not willful. (Pl.’s Objs. at 3-5.) The Court disagrees. As an initial matter, the Court notes that Plaintiffs contentions regarding willfulness were already presented to Judge Lindsay in Plaintiffs opposition to the Ratan Defendants’ motion to vacate the entry of default. {See Pl.’s Opp. Br., Docket Entry 26.) Accordingly, “[w]here, as here, objections to a Report and Recommendation merely rehash arguments presented to the Magistrate Judge, the standard of review undertaken by the District Court is not de novo but clear error.” Blasters, Drillrunners & Miners Union Local 29 v. Trocom Constr. Corp., No. 10-CV-4777, 2012 WL 1067992, at *2 (E.D.N.Y. Mar. 29, 2012) (citations omitted). Nonetheless, the Court has conducted a de novo review and finds that Plaintiffs objection is meritless. A finding of willfulness is appropriate where “there is ‘evidence of bad faith’ or the default" }, { "docid": "61699", "title": "", "text": "err in denying Eller’s motion for a JMOL on the unfair competition claim. C. Finally, Eller contends that even if we affirm the district court’s decision to deny Eller’s motion for a JMOL on CSI’s unfair competition claim, it is entitled to a new trial because the verdict was against the clear weight of the evidence. We review the denial of a motion for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure for abuse of discretion. Jorgensen, 320 F.3d at 918. A new trial is warranted where the verdict is contrary to the clear weight of the evidence and the verdict results in the miscarriage of justice. Graves v. City of Coeur D’Alene, 339 F.3d 828, 839 n. 14 (9th Cir.2003). In support of this contention, Eller merely reiterated its argument that CSI failed to produce any legally sufficient evidence that it was liable for fraud because its score was too low to have been awarded the contract by the City. See Pet. Op. Brief at 50 (“For the reasons articulated in the foregoing argument, the verdict is against the clear weight of the evidence.”). However, we have recognized that a party who appeals from the denial of a motion for a new trial “has a substantial burden to overcome” in demonstrating that the trial judge abused his discretion. Berns v. Pan American World Airways, Inc., 667 F.2d 826, 831 & n. 6 (9th Cir.1982). (“Where a litigant forwards a motion for a new trial based on a claim that the verdict is excessive, the Ninth Circuit has stated that it may not reverse the trial court unless the verdict is grossly excessive or monstrous ‘[a]bsent a total want of evidence on all or certain portions of the case, or the erroneous exclusion from consideration by the trial court of appropriate matters or a showing of bias or prejudice on the part of the jury.’ ”) (quoting Siebrand v. Gossnell, 234 F.2d 81, 94 (9th Cir.1956)). Eller has failed to demonstrate that there was a total want of evidence of liability for unfair competition" }, { "docid": "1833835", "title": "", "text": "a motion for judgment as a matter of law following entry of judgment under Rule 50(b), however, our review is circumscribed. Both parties cite Cross v. Cleaver for the proposition that absent a Rule 50(b) -motion, this court reviews the district court’s denial of a motion for judgment as a matter of law for plain error. See Cross v. Cleaver, 142 F.3d 1059, 1070 (8th Cir.1998) (quotations omitted) (“[This court] cannot test the sufficiency of the evidence to support the jury’s verdict beyond application of the plain error doctrine in order to prevent a manifest miscarriage of justice.”). Neither party acknowledges, however, that the Supreme Court has stated that “when a party fails to file a motion under Rule 50(b), ‘there [is] no basis for review of [the party’s] sufficiency of the evidence challenge in the Court of Appeals.’” Sw. Bell Tel., L.P., 550 F.3d at 708 (quoting Unitherm Food Sys. v. Swift Eckrich, Inc., 546 U.S. 394, 407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006)). Plaintiffs’ arguments on appeal are the same arguments that they made in their Rule 50(a) motion before the district court. Because a Rule 50(a) motion can only prevail if there is no “legally sufficient evidentiary basis to find for the party,” each of the arguments that Plaintiffs raise in their motion on appeal is, in effect, a sufficiency-of-the-evidence challenge. See id. at 709. In light of Unitherm and Southwestern Bell, then, because Plaintiffs failed to file a Rule 50(b) motion, we are without the power to consider the district court’s denial of the 50(a) on appeal. We thus refrain from ad,dressing the merits of the parties’ arguments with regard to whether sufficient evidence supported the jury’s verdict on Plaintiffs’ drive-time, mealtime, and other overtime compensation claims. IV. Finally, Plaintiffs claim that the district court erred in issuing and failing to issue various instructions to the jury. “When reviewing ... jury instructions for error, we must consider the instructions in their entirety. Jury instructions are generally committed to the sound discretion of the district judge, and the district judge is entitled to a great deal" } ]

[ { "docid": "22665427", "title": "", "text": "OPINION DIANA GRIBBON MOTZ, Circuit Judge: In each of these cases, an appellant contends that the sentencing court committed reversible procedural error by failing to consider the required sentencing factors and offer an adequate explanation for the sentence imposed. When a party lodges such an objection in the sentencing court, we review for abuse of discretion. We consolidated these cases on appeal to resolve what standard of appellate review applies when a party lodges such an objection for the first time on appeal. For the reasons that follow, we conclude that we subject such unpreserved objections only to plain-error review. I. The question at issue in these consolidated cases arises from the Supreme Court’s recent sentencing decisions. In United States v. Booker, 543 U.S. 220, 245, 262, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court rendered the once-mandatory federal Sentencing Guidelines “effectively advisory,” and called on federal appellate courts to review district courts’ sentences for “reasonableness.” In Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court explained that this reasonableness review has procedural and substantive components. First, an appellate court must review for procedural reasonableness, ensuring] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Id. If the appellate court finds a sentence procedurally reasonable, it then moves to the second step, in which it “considers] the substantive reasonableness of the sentence imposed under an abuse-of-diseretion standard.” Id.; see also Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). These consolidated cases present claims only of pro cedural error, i.e. that a sentencing court assertedly “fail[ed] to consider the § 3553(a) factors” and “adequately explain the chosen sentence,” as required by § 3553(c). Gall, 552 U.S. at 51, 128 S.Ct. 586; see" } ]

[ { "docid": "22911765", "title": "", "text": "is within the guidelines, it is proportional with other sentences that are imposed in similar situations.” Id. at 17. No additional objections were noted. Johnson timely appealed. II. ANALYSIS A. Standard of Review We review for abuse of discretion the sentence imposed by a district court upon revocation of supervised release. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir.2008). In reviewing for procedural reasonableness, a district court abuses its discretion if it “commitfs] [a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In reviewing for substantive reasonableness, we must consider the sentence imposed in light of “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id For sentences within the Guidelines range, we may apply a rebuttable presumption of reasonableness; but we may not apply a presumption of unreasonableness to sentences outside the Guidelines range. Id; United States v. Bolds, 511 F.3d 568, 581 (6th Cir.2007). “[We] may consider the extent of the deviation,” when reviewing for substantive reasonableness, “but [we] must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “The fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. B. Procedural Reasonableness 1. Guideline Range When reviewing a sentence for procedural reasonableness, “[f]irst, we must ensure that the district court ‘correctly calculate^] the applicable Guidelines range’ ” because it is “ ‘the starting point and initial benchmark’ of its sentencing analysis.” Bolds, 511 F.3d at 579 (second alteration in original) (quoting Gall, 552 U.S. at 49, 128 S.Ct. 586). Johnson notes that, in response to" }, { "docid": "8839949", "title": "", "text": "125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a question of law we review de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). The Supreme Court in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), described the procedure that a sentencing court is required to follow. First, the sentencing court must correctly calculate the applicable Guidelines range. Gall, 552 U.S. at 39, 128 S.Ct. 586. Then, after giving both parties an opportunity to argue for the sentence they deem appropriate, the sentencing judge should consider all the § 3553(a) factors. Id. at 49, 128 S.Ct. 586. After deciding on the appropriate sentence, the sentencing court must adequately explain the chosen sentence. Id. at 50, 128 S.Ct. 586. “The district court need not address each § 3553(a) factor in checklist fashion, explicitly articulating its conclusion for each factor; rather, the court must simply give an adequate statement of reasons, consistent with § 3553(a), for believing the sentence it selects is appropriate.” United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir.2008). Once we are satisfied that the district court committed no procedural error, we review the substantive reasonableness of the sentence under the abuse of discretion standard. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010). A within-Guidelines sentence is entitled to a presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Baker argues that the district court did not expressly discuss the seriousness of his present offense, and to the degree that the judge did so, the judge improperly considered the seriousness in light of Baker’s prior convictions. Ultimately, this argument amounts to Baker’s dissatisfaction with his increased sentence because of his career offender enhancement, which was properly applied and not challenged during the sentencing hearing or on appeal. Section 3553(a) and the career offender guidelines encourage judges to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) (emphasis added). The district court’s fairly lengthy discussion of Baker’s previous convictions—all" }, { "docid": "22147501", "title": "", "text": "U.S.C.A. § 3553(a) (West 2000 & Supp.2009). See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008). Sentencing courts are statutorily required to state their reasons for imposing sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009). Although a comprehensive, detailed opinion is not necessarily required, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts have “sizeable discretion” when sentencing, Abu Ali 528 F.3d at 266, and appellate review is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 40-41, 128 S.Ct. 586. An appellate court’s reasonableness review has procedural and substantive components. The procedural component requires us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. The substantive component of reasonableness review requires us to “take into account the totality of the circumstances.” Id. While we may consider the extent of any variance from the advisory Guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. Given the institutional advantages of district courts with regard to sentencing matters, see United States v. Evans, 526 F.3d 155, 166 (4th Cir.), cert. denied, — U.S.-, 129 S.Ct." }, { "docid": "22102010", "title": "", "text": "acknowledges that he “failed to raise an objection to his sentencefing] in the district court” and did not argue for a sentence different from the one he received. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir.2010). The sentencing structure since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), when the Sentencing Guidelines became advisory, and Rita, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), when the sentencing procedure was particularized, is now well established. In imposing a sentence, a court must comply with both procedural requirements and substantive standards. As a matter of procedure, the district court must begin its sentencing proceeding “by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark.” Gall, 552 U.S. at 49, 128 S.Ct. 586. The court must thereafter give the parties the opportunity to argue for whatever sentence they deem appropriate and consider those arguments in light of all of the factors stated in 18 U.S.C. § 3553(a). Id. at 49-50, 128 S.Ct. 586. The court must then select a sentence within or outside the Guidelines range, based on an “individualized assessment” of the facts presented. Id. at 50, 128 S.Ct. 586. And finally, the court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. In this case, Hernandez argues that his sentence was procedurally unreasonable because the district court did not “adequately explain the chosen sentence,” citing Gall and United States v. Carter, 564 F.3d 325, 328-30 (4th Cir.2009). See also United States v. Engle, 592 F.3d 495, 500 (4th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). In Carter, we held that a sentence was procedurally unreasonable when the district court failed to make an individualized assessment on the facts presented and to state the particular reasons for a sentence that varied downward from an advisory Guidelines range of 37 to 46 months’ imprisonment to" }, { "docid": "7733821", "title": "", "text": "failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to a within-Guidelines sentence) (citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir.2012) (holding that a properly calculated Guidelines sentence is presumed to be reasonable). When addressing a party’s nonMvolous argument, the sentencing court commits procedural error if it “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the 18 U.S.C. § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court must say enough to “satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis for exercising its own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. Furthermore, “the court must address the defendant’s principal arguments that are not so weak as to not merit discussion” United States v. Pulley, 601 F.3d 660, 667 (7th Cir.2010) (citing United States v. Villegas-Miranda, 579" }, { "docid": "22601966", "title": "", "text": "of Appellant 19. Having neither the authority nor the inclination to do so, we decline to intrude upon the verdicts. D. Louthian also challenges his below-Guidelines sentence of forty-eight months as being excessive, in view of his age, poor health, and lack of a criminal history. For those reasons, he argues, the district court ought to have departed downward. We are unable, however, to review a sentencing court’s decision not to depart unless the court mistakenly believed that it lacked the authority to do so. See United States v. Brewer, 520 F.3d 367, 371 (4th Cir.2008). Before pronouncing sentence, the court recognized its obligation to “consider any applicable departure policy statements by the Sentencing Commission.” J.A. 1056. The court then considered Louthian’s request for a downward departure under the Guidelines, but concluded that none was appropriate. Because the court understood its authority, but declined to exercise it on the facts of this case, Louthian cannot contest on appeal the court’s failure to depart downward. To the extent that Louthian challenges his sentence as otherwise unreasonable, we are unmoved. We review a court’s sentencing decisions for abuse of discretion only. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008). Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors. . See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006). Louthian makes no assertion that his forty-eight-month sentence was tainted by procedural flaws, such as errors in calculating the Guidelines range, erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a) factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain the sentence. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Meanwhile, we cannot conclude that his sentence was substantively unreasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). We observe that, although" }, { "docid": "17568793", "title": "", "text": "range of 120 to 120 months to comply with the statutory maximum. The district court applied a downward variance based primarily on the relative seriousness of McManus’s offense, resulting in a sentence of 72 months’ imprisonment. II. On appeal, McManus contends that his sentence is procedurally unreasonable because the district court improperly calculated his Guideline range under U.S.S.G. § 2G2.2(b). He argues that the district court erred by applying the five-level enhancement under § 2G2.2(b)(3)(B) instead of the two-level enhancement for simple distribution under § 2G2.2(b)(3)(F). We review criminal sentences for reasonableness using an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.2012). The review proceeds in two parts. We first determine whether the district court committed any significant procedural error. Id. If the sentence is procedurally sound, we review its substantive reasonableness to determine whether in the totality of the circumstances the district court abused its discretion by concluding that the sentence satisfies the standards set out in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51, 128 S.Ct. 586. Interpretation of the Sentencing Guidelines is a question of law that we review de novo. United States v. Price, 711 F.3d 455, 458 (4th Cir.2013). “Although the sentencing guidelines are only advisory, improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.” United States v. Hargrove, 701 F.3d 156, 161 (4th Cir.2012). However, sentencing error is subject to harmlessness review. Sentencing “error is harmless if the resulting sentence [is] not ‘longer than that to which [the defendant] would otherwise be subject.’ ” United States v. Mehta, 594 F.3d 277, 283 (4th Cir.2010) (quoting United States v. Stokes, 261 F.3d 496, 499 (4th Cir.2001)). III. The proper manner of applying the five-level § 2G2.2(b)(3)(B) enhancement to a defendant’s use of a file-sharing program to distribute child pornography is a question of first impression in" }, { "docid": "15621925", "title": "", "text": "the fire at JB’s Foods in April 2004, but not necessarily in regard to other alleged crimes, does not undermine the jury’s verdict that Bazazpour aided and abetted arson of JB’s Foods on April 22, 2004. C. Challenge to the Reasonableness of the Sentence In his final appellate issue, Bazazpour wages a multi-pronged attack on the effective 240-month prison sentence that the district judge imposed upon him. He contends that the district court erred in calculating his base offense level; that the court should have reduced his sentence due to the duress under which Bazazpour was operating; that the court improperly considered him to be a manager or supervisor of the offenses; and that the court erred in enhancing his sentence for obstruction of justice. We review a district court’s imposition of a sentence for reasonableness, using the deferential abuse-of-discretion standard. See United States v. Pearce, 581 F.3d 874, 384 (6th Cir.2008). Such review “has both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A review for substantive reasonableness “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Furthermore, “we may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district court’s sentencing determination simply because we “might reasonably have concluded that a different sentence was appropriate.” Gall, 552 U.S. at 51, 128 S.Ct. 586. 1.Calculation of the loss We first address Bazazpour’s assertion that the district court applied the wrong base offense level under the Guidelines. He claims that" }, { "docid": "22601967", "title": "", "text": "we are unmoved. We review a court’s sentencing decisions for abuse of discretion only. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008). Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors. . See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006). Louthian makes no assertion that his forty-eight-month sentence was tainted by procedural flaws, such as errors in calculating the Guidelines range, erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a) factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain the sentence. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Meanwhile, we cannot conclude that his sentence was substantively unreasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). We observe that, although the court denied Louthian’s request for a departure on account of age, health, and criminal history, it varied downward for those very reasons, imposing an aggregate sentence (48 months) that is less than half the low end of his Guidelines range (121 months). Louthi-an’s sentence therefore cannot be deemed unreasonable. E. Finally, Louthian contends that he was unfairly prejudiced when the prosecutors “chose to pursue” a criminal forfeiture against him after his trial. Br. of Appellant 26. Instead, Louthian maintains, the prosecution should have initiated a civil forfeiture action against him and the Squad, so that he could have lodged a cross-claim against the Squad for state-law indemnity. As the government responds, however, a criminal forfeiture of tainted assets in a health care fraud proceeding is mandatory. See 18 U.S.C. § 982(a)(7) (“[T]he court ... shall order the person to forfeit property, real or personal, that constitutes, or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense.” (emphasis added)). In this situation, it is apparent that the prosecution and" }, { "docid": "9678421", "title": "", "text": "her final issue on appeal, Cure-ton challenges the appropriateness of her 90-month prison sentence. She argues that the district court relied upon an improper presentence investigation report in calculating her Guidelines range and that she should have been deemed a minimal participant, rather than a minor participant, in the conspiracy. She further alleges that when formulating her sentence, the district court failed to give due consideration to the abuse she suffered as a child and erred in basing the sentence on the fact that “actual” methamphetamine was distributed in furtherance of the conspiracy without any expert testimony to establish the purity of the drug. We review a district court’s imposition of a sentence for reasonableness, employing a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Such a reasonableness review “has both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A review for substantive reasonableness “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. “A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). Furthermore, “we may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district court’s sentencing determination simply because we “might reasonably have concluded that" }, { "docid": "3757873", "title": "", "text": "also believes his life sentence is not reasonable in comparison with those imposed on four codefendants who entered guilty pleas and were sentenced to 156 months, 180 months, 108 months, and 132 months, respectively. He succinctly describes the sentencing range he believes is justified by the evidence as follows: “[ a] sentence higher than what the codefendants who pled [guilty] but lower than what the leader [i.e., Ayala] received would have been a ‘reasonable’ sentence.” The government predictably argues that the district court properly followed sentencing procedures and that the sentence is not unreasonable given that it is in accordance with the sentencing guidelines and is appropriate to Cruz’s role in the drug conspiracy. We deal with these challenges seriatim. a. Standard of Review The Supreme Court has clearly delineated the nature and scope of our review of the district judge’s sentencing decision. “[A]ppellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our “ ‘review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.’ ” United States v. Leahy, 668 F.3d 18, 21 (1st Cir.2012) (quoting United States v. Clogston, 662 F.3d 588, 590 (1st Cir.2011)). We employ the abuse of discretion standard in reviewing claimed procedural errors and in our consideration of the sentence’s substantive reasonableness. United States v. Politano, 522 F.3d 69, 72 (1st Cir.2008). And we take into account the totality of the circumstances surrounding both procedural and substantive reasonableness. Gall, 552 U.S. at 51, 128 S.Ct. 586. We take up consideration of the procedural and substantive reasonableness of Cruz’s sentence in turn. b. Procedural Reasonableness When we review a sentence’s procedural reasonableness, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen" }, { "docid": "23354997", "title": "", "text": "this case will not create an unwarranted sentencing disparity among similarly situated defendants.” She thereupon amended the sentencing order to 300 months for the charge of bank fraud — an upward variance of 65 months of imprisonment above the calculated Guidelines range — with a concurrent sentence of 60 months of imprisonment for the obstruction-of-justice charge. This timely appeal followed. II. ANALYSIS A. Standard of review for sentencing determinations A district court’s sentencing determination is reviewed “under a deferential abuse-of-discretion standard” for reasonableness, which has both a procedural and a substantive component. Gall v. United States, — U.S.-, 128 S.Ct. 586, 592, 597, 169 L.Ed.2d 445 (2007). We must first ensure that the district court committed no procedural error. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it “commit[s][a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. If the district court’s sentencing decision is procedurally sound, we must “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ... tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. For sentences within the Guidelines range, we may apply a rebuttable presumption of substantive reasonableness. Id.; Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006). We may not, however, apply “a presumption of unreasonableness” to sentences outside of the Guidelines range. Gall, 128 S.Ct. at 597. If the sentence departs from the Guidelines, we must give “due deference” to the district court’s decision that the § 3553(a) factors justify the variance. Id. “The fact that [this court] might reasonably have concluded that a different sentence was appropriate is insufficient" }, { "docid": "22427553", "title": "", "text": "rights by penalizing him for exercising a constitutional right. Since the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the federal Sentencing Guidelines have been “effectively advisory,” id. at 245, 125 S.Ct. 738, and appellate review of district court sentences has been for “reasonableness.” In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court explained that appellate review for “reasonableness” involves both procedural and substantive components. The Court first reviews for procedural reasonableness, ensuring] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C. § ] 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. Once the reviewing court determines that the sentence is procedurally reasonable, it proceeds to the second component of the analysis, the substantive reasonableness of the sentence. Id. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness .... The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Id. Hargrove does not raise any issues challenging the procedural reasonableness of his sentence. Accordingly, we proceed to the substantive reasonableness of his sentence. Ordinarily, we review the substantive reasonableness of a sentence for abuse of discretion. Id. However, the record shows that Hargrove did not object to the district court’s explanation of the sentence imposed. For this reason, the Government asserts that we should review under plain error and relies on this Court’s decision in United States v. Lynn, 592 F.3d 572 (4th Cir.2010), to support its" }, { "docid": "10780716", "title": "", "text": "Although a court need not necessarily issue a comprehensive, detailed opinion, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts’ sentencing discretion is “sizeable,” Abu Ali, 528 F.3d at 266, and our review on appeal is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 51, 128 S.Ct. 586. Our reasonableness review has procedural and substantive components. The procedural component, the one at is sue in this case, obligates us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Id. Here, as we have explained, the error alleged is that the district court committed procedural error by failing to adequately explain its decision not to impose a below-guidelines sentence. We have held that arguments made under § 3553(a) for a sentence different than the one that is eventually imposed are sufficient to preserve claims that the district court erred in not adequately explaining its- rejection of the sentencing arguments. See United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.2010); United States v. Grier, 475 F.3d 556, 571 n. 11 (3d Cir.2007) (en banc) (“Am objection to [an inadequate explanation] will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).”). Because Boulware argued" }, { "docid": "20253985", "title": "", "text": "sentence run consecutively to the undischarged portion of his 30-year Texas murder sentence. “On appeal, we will review a sentence for an abuse of discretion, giving due deference to the district court’s decision.” United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008)(citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,” and we “may ... apply a presumption of reasonableness” to a sentence within the advisory Guidelines range. Id. A district court’s decision to impose a consecutive sentence is similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006). After reviewing the record, we can discern no procedural error in the court’s imposition of a 235-month sentence. The district court properly calculated Lomeli’s offense level and criminal history and correctly determined Lomeli’s advisory Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a) factors in arriving at the sentence it deemed appropriate, and adequately explained its reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-related conviction, and the fact that he is a violent and threatening person. As we explained above, it was not error for the court to consider Lomeli’s criminal history as this did not violate the U.S.-Mexico Extradition Treaty. We next turn to the question of whether the district court committed procedural error in ordering Lomeli’s sentence to run consecutively to the undischarged portion of his Texas" }, { "docid": "22924884", "title": "", "text": "but denied his other two objections. After applying a full three-level reduction for acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 3E1.1, the district court determined that the total offense level was 34 and the criminal history category was VI, which yielded a Guidelines range of 262 to 327 months. Acknowledging the advisory nature of the Guidelines, the district court then sentenced defendant to a term of 300 months’ imprisonment. Defendant timely appealed his sentence. II Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court’s sentencing decisions “under a deferential abuse-of-discretion standard,” for reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.2008). This inquiry consists of both a procedural and a substantive component. Gall, 128 S.Ct. at 597. First, we must “ensure that the district court committed no significant procedural error.” Id. A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen sentence. Id. We review the district court’s application of the Sentencing Guidelines de novo and the district court’s findings of fact at sentencing for clear error. United States v. Hunt, 487 F.3d 347, 350 (6th Cir.2007). If the sentence is proeedurally sound, we then must consider “the substantive reasonableness of the sentence imposed.” Gall, 128 S.Ct. at 597. A sentence is substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008). Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of substantive reasonableness on appeal. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (en banc); see also Rita v. United States, 551 U.S. 338, 127 S.Ct." }, { "docid": "20605703", "title": "", "text": "appeal. 2. Reasonableness of Fields’ sentence Post-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court’s sentencing determination “ ‘under a deferential abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The Supreme Court has “directed the Courts of Appeals to ‘first ensure that the district court committed no significant procedural error’ ”; assuming that the sentencing decision is proeedurally sound, “ ‘the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’ ” United States v. Klups, 514 F.3d 532, 536 (6th Cir.2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Fields challenges only the substantive reasonableness of his sentence. The essence of substantive reasonableness is “whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir.2010). A sentence “may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008). “Because ‘[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a),’ this [c]ourt applies a great deal of deference to a district court’s determination that a particular sentence is appropriate.” United States v. Mayberry, 540 F.3d 506, 519 (6th Cir.2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Moreover, we “afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness.” United States v. Taylor, 557 Fed.Appx. 475, 475 (6th Cir.2014) (per curiam). Accordingly, a defendant’s “burden of demonstrating that his below-guidelines sentence ‘is unreasonably long is even more demanding.’ ” Id. (quoting United States v. Curry, 536 F.3d 571, 573 (6th Cir.2008)); see also United States v. Greco, 734 F.3d 441, 450 (6th Cir.2013) (“Although it is" }, { "docid": "17084133", "title": "", "text": "justifies a longer sentence. The government notes that he has a history of committing violent crimes, and his involvement in the plan to escape (which entailed dangerous weapons and could have resulted in harm to jail personnel) further demonstrates Boneshirt’s violent propensities. Thus, the government maintains that the court was justified in believing that Boneshirt should be imprisoned until a “very mature age.” Finally, the government argues that Boneshirt’s comparative analysis of murder sentences is unhelpful because it failed to account for life sentences; in any case, the government contends that the district court considered the analysis and found that a 576-month sentence was warranted. Additionally, the government maintains that § 3558(a) does not mandate an “average” sentence, especially because the Guidelines ranges are already intended to account for average sentences. See United States v. Mistretta, 488 U.S. 361, 374-76, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This court applies “a deferential abuse-of-discretion standard” in reviewing the imposition of a sentence. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (quotations and citations omitted). Generally, our first task is to “ ‘ensure that the district court committed no significant procedural error.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “ ‘Procedural error’ includes ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). In the absence of procedural error below, we “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, [552 U.S. at 51, 128 S.Ct. 586]. In conducting this review, we are to “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. If the defendant’s sentence is within the Guidelines range, then we “may, but [are] not required to, apply a presumption of" }, { "docid": "20713470", "title": "", "text": "that is something less than knowledge. Finally, we note that we have approved the giving of this instruction “ ‘to show a conspirator’s knowledge of the unlawful aims of a conspiracy.’ ” Williams, 612 F.3d at 508 (quoting United States v. Warshawsky, 20 F.3d 204, 210 (6th Cir.1994), superseded on other grounds as stated in United States v. Myint, 455 Fed.Appx. 596, 604 (6th Cir.2012)). B. Sentencing Mr. Mitchell raises also various objections to the sentence imposed by the district court. We review his sentence for reasonableness, both procedural and substantive, for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cunningham, 669 F.3d 723, 728 (6th Cir.2012). We must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586; see also Cunningham, 669 F.3d at 728 (“Procedural reasonableness review begins with a robust review of the factors evaluated and the procedures employed by the district court in reaching its sentencing deter mination.” (internal quotation marks omitted)). We then consider the substantive reasonableness of the sentence under the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” Cunningham, 669 F.3d at 733. We give deference to the district court’s sentence to the extent it is justified by the § 3553(a) factors, and we may presume that a within-guidelines sentence is reasonable. Id. 1. Procedural Reasonableness Mr. Mitchell contends that the district court erred by failing to depart downward under United States Sentencing Guideline § 5H1.6, the" }, { "docid": "10780715", "title": "", "text": "even assuming that the court’s explanation was insufficient, we agree with the government’s assertion that any error was harmless. Since the Supreme Court issued its Booker decision, the Sentencing Guidelines are no longer mandatory but rather are “effectively advisory.” United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When sentencing criminal defendants post -Booker, district courts first must correctly calculate the defendant’s sentencing range under the Sentencing Guidelines. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court must then allow the parties to argue for what they believe to be an appropriate sentence and consider those arguments in light of the factors set forth in 18 U.S.C.A. § 3553(a). See id. at 49-50, 128 S.Ct. 586; United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1312, 173 L.Ed.2d 584 (2009). Sentencing courts are statutorily required to state their reasons for imposing a particular sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009). Although a court need not necessarily issue a comprehensive, detailed opinion, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts’ sentencing discretion is “sizeable,” Abu Ali, 528 F.3d at 266, and our review on appeal is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 51, 128 S.Ct. 586. Our reasonableness review has procedural and substantive components. The procedural component, the one at is sue in this case, obligates us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the" } ]

[ { "docid": "23132931", "title": "", "text": "union notified respondent and the association, on February 23, 1963, of a wish to negotiate. It was the usual practice for the association to bargain generally and for each member to bargain on particular matters. Respondent did not reply to the union’s request, and the union and association met March 14 and 25. Respondent’s Secretary-Treasurer, its bargaining official, was present at these meetings. On March 27 respondent filed a petition with the NL RB Regional Director, requesting an election in a single employer unit, and on April 1 notified the association it was withdrawing bargaining authority effective March 26. Respondent withdrew the petition of March 27, as well as another filed later, and eventually filed a third petition on May 1. After further negotiation the union and association agreed to terms on April 30, and the agreement was ratified and signed by May 8. Respondent refused to ratify and to continue to recognize the union. Respondent argued before the Board that there was nothing to support the determination of a multi-employer bargaining unit. The Board has been given broad discretion in this area, NLRB v. Truck Drivers Local No. 449, etc. (Buffalo Linen), 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), especially where the individual units are small. Here the units were small and worked in the same narrow field and the employers had agreed to bargain and had bargained as such a unit. Respondent stressed the right of individual employers to bargain separately on special matters. Sometimes this has resulted in a finding of no multi-employer unit, see Retail Clerks Union No. 1550 v. NLRB, 117 U.S.App.D.C. 191, 330 F.2d 210 (1964). But “Multi-employer bargaining does not altogether preclude demand for specialized treatment of special problems.” Genesco, Inc. v. Joint Council 13, United Shoe Workers of America, 341 F.2d 482 (2 Cir. 1965). The Board’s determination of the appropriate bargaining unit should not lightly be set aside, Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). Respondent here indicated by agreeing to three previous agreements that it intended to be" } ]

[ { "docid": "3999072", "title": "", "text": "59, 56 L.R.R.M. 1150 (1964). The evidence is clear that both parties considered “final” offers, and upon rejection by both, the Union bargained separately with three individual employers. We find this to be persuasive evidence that an impasse was reached. “Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations, are all relevant factors to be considered in deciding whether an impasse in bargaining existed.” Taft Broadcasting Co., 163 N.L.R.B. 475, 64 L.R.R.M. 1386, 1388 (1967), enforced, 129 U.S.App.D.C. 399, 395 F.2d 622. When viewed from the vantage of both of the parties, the record is clear that as long as Fairmont remained a member of the Association, the parties were irreconcilable on the load limit issue. The only way to break the impasse was by the withdrawal of Fairmont. Other members of the group invited Fairmont to leave for this reason and Fairmont did leave for that reason. As indicated by NLRB Chairman Miller in his dissent, it seems particularly incongruous under these circumstances to find Fairmont guilty of bad-faith bargaining. Because an impasse had been reached, Fairmont’s withdrawal was timely. It therefore was not a violation of 8(a)(5) and (1) of the Act to refuse to be bound by an agreement reached by the Union and the multiemployer group after withdrawl with the Union’s knowledge. Consent Not only had an impasse in negotiations been reached, but we conclude that the evidence shows the Union consented to Fairmont’s withdrawal. Thus, the .Union cannot be heard to complain that the withdrawal was “untimely.” See N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 247 (2d Cir.1966); C & M Construction Co., 147 N.L.R.B. 893, 56 L.R.R.M. 1270, 1271 (1964). Moran made no objection to Fairmont’s withdrawal when he was so informed verbally prior to reaching an agreement with the Association. Although the Union was under no affirmative duty to formally" }, { "docid": "2143221", "title": "", "text": "the text, there is sufficient other evidence of the Association’s support of Local 810, we find it unnecessary to determine whether Brickman’s statements forfeited their privileged status because they contemplated the commission of unfair labor practices. Cf. Matter of Doe, 551 F.2d 899, 900-01 (2d Cir. 1977); United States v. Bob, 106 F.2d 37 (2d Cir.), cert. denied, 308 U.S. 589, 60 S.Ct. 115, 84 L.Ed. 493 (1939). . By considering, although rejecting, an employer’s claim of impasse in John J. Corbett Press, supra, 401 F.2d at 675, we did at least inferentially suggest that a genuine impasse in negotiations might justify an employer’s unilateral withdrawal. . Letter from Region 2 Director to Independent Association of Steel Fabricators (November 21, 1975), Respondents’ Exhibit 8. . As the Ninth Circuit has noted, one of the reasons for accepting impasse as a justification for an employer’s unilateral withdrawal is that “[w]ere the rule otherwise, a union could reach an agreement with one or more employers and then whipsaw the remaining members of the significantly fragmented and weakened multiemployer unit,” Associated Shower Door, supra, 512 F.2d at 232. . While it may be true, as the Administrative Law Judge concluded, that there was “movement” in the parties’ positions at the January 14 meeting, a shift in position will not of itself signify the end of an impasse unless it appears that further discussion would be fruitful. Here, in view of the union’s intransigence concerning the Allied contract disparities, its January 16 tender of a more complete proposal is without significance. . See, e. g., N.L.R.B. v. Central Plumbing Co., 492 F.2d 1252 (6th Cir. 1974) (parties negotiating under terms of agreement); N.L.R.B. v. Corbett Press, supra, 401 F.2d at 675 (negotiations, though “somewhat protracted, were continuing normally”). . Nor is it significant that respondents failed to attribute their withdrawal to an impasse in their January 16 letter to the union. In the context of this labor dispute, respondents’ invocation of the impasse doctrine does not appear to be an “afterthought,” cf. N.L.R.B. v. Tulsa Sheet Metal Workers, Inc., 367 F.2d 55, 58 (10th" }, { "docid": "3999073", "title": "", "text": "group invited Fairmont to leave for this reason and Fairmont did leave for that reason. As indicated by NLRB Chairman Miller in his dissent, it seems particularly incongruous under these circumstances to find Fairmont guilty of bad-faith bargaining. Because an impasse had been reached, Fairmont’s withdrawal was timely. It therefore was not a violation of 8(a)(5) and (1) of the Act to refuse to be bound by an agreement reached by the Union and the multiemployer group after withdrawl with the Union’s knowledge. Consent Not only had an impasse in negotiations been reached, but we conclude that the evidence shows the Union consented to Fairmont’s withdrawal. Thus, the .Union cannot be heard to complain that the withdrawal was “untimely.” See N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 247 (2d Cir.1966); C & M Construction Co., 147 N.L.R.B. 893, 56 L.R.R.M. 1270, 1271 (1964). Moran made no objection to Fairmont’s withdrawal when he was so informed verbally prior to reaching an agreement with the Association. Although the Union was under no affirmative duty to formally protest the withdrawal, see N.L.R.B. v. John J. Corbett Press, Inc., 401 F.2d 673, 675 (2d Cir. 1968), its course of conduct constituted an implied consent. See Publicity Engravers, Inc., 161 N.L.R.B. 221, 63 L.R. R.M. 1236 (1966). It is clear from the record that Moran knew that Fairmont was the stumbling block on the load limit issue. Yet he was willing to accept quietly the benefit to be obtained by Fairmont’s withdrawal, in the form of a quick agreement to a contract, without insisting then that Fairmont sign the contract with the other employers and without even indicating to anyone at the time that he expected Fairmont to be bound. The Union’s willingness to bargain with Fairmont even after the agreement was reached, as well as its willingness to bargain with the other individual employers during the impasse, is further evidence of acquiescence. Atlas Sheet Metal Workers, Inc., 148 N.L.R.B. 27, 29, 56 L.R.R.M. 1442, 1443 (1964). Moran testified that “[t]he purpose of the meeting [on May 5], in our estimation, was to come" }, { "docid": "2143192", "title": "", "text": "(2d Cir. 1967); N.L.R.B. v. Fotochrome, Inc., 343 F.2d 631, 632-33 (2d Cir.), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). II WITHDRAWAL FROM THE ASSOCIATION — IMPASSE The rule in this circuit is that once negotiations have begun, a member’s attempt to withdraw from a multi-employer bargaining unit is “‘untimely’ and there fore ineffectual to relieve him from the obligations of any agreement that is ultimately reached, absent special circumstances or consent by the union.” N.L.R.B. v. John J. Corbett Press, 401 F.2d 673, 675 (2d Cir. 1968). Accord, N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). The questions we face here are: (1) whether an impasse constitutes such a special circumstance as to justify unilateral withdrawal; (2) whether an impasse in negotiations in fact occurred; and (3) whether notice to the union of withdrawal is a prerequisite to its effectiveness. In this circuit, we have never directly ruled on an actual impasse situation as it affects the withdrawal rights of a member of a multi-employer bargaining unit. The policy considerations involved are easy to formulate but difficult to reconcile. The rule against untimely withdrawal is designed to preserve the stability of multi-employer bargaining which would be impaired if an employer could withdraw whenever it found the results of such bargaining uncongenial or if it felt that it could use the threat of withdrawal as bargaining leverage. See N.L.R.B. v. Sheridan Creations, Inc., supra, 357 F.2d at 248. By the same token, however, the objectives of collective bargaining would be ill-served by compelling employers to remain in the bargaining unit once it becomes clear that no progress is being made within that framework. Thus, all the circuits which have addressed the issue have concluded that a genuine impasse in negotiations will justify an employer’s unilateral withdrawal from multiemployer bargaining. N.L.R.B. v. Beck Engraving Co., 522 F.2d 475 (3d Cir. 1975); N.L.R.B. v. Hi-Way Billboards, Inc., 500 F.2d 181 (5th Cir. 1974); Fairmont Foods Co. v. N.L.R.B., 471 F.2d 1170 (8th" }, { "docid": "2409351", "title": "", "text": "a withdrawal that would otherwise violate the Act. The parties before this court press these same arguments. Thus, the question we must decide is whether unilateral withdrawal by a member employer from a multiemployer bargaining unit solely because of impasse constitutes a refusal to bargain in violation of sections 8(a)(1) and (5) of the Act. We hold as a matter of law that it does. II. Our resolution of this issue requires consideration of the Board’s policy toward and rules governing multiemployer bargaining. The Board has consistently held that employers may not, absent unusual circumstances, withdraw from multiemployer bargaining units once negotiations have commenced. Retail Associates, Inc., 120 N.L.R.B. 388, 395 (1958). Prohibiting such withdrawals contributes to the stability of multiemployer units and prevents the use of the scope of the bargaining unit as a bargaining lever to secure an economic advantage for one side over the other. See NLRB v. Sheridan Creations, Inc., 357 F.2d 245, 248 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). This furthers the substantial public interest served by multiemployer bargaining, which the Supreme Court has characterized as a “vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining.” NLRB v. Truck Drivers Local Union No. 449 (Buffalo Linen), 353 U.S. 87, 95, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). The Board, however, has not taken an inflexible position on this matter. Under the Board’s ground rules laid out in Retail Associates any party-employer or union-is free to withdraw from the multiemployer unit prior to the date set for renegotiation of an existing contract or before the parties begin negotiations toward a new contract. Once the parties begin negotiations, however, a party may withdraw only if unusual circumstances exist or if both the union and the employer’s association agree to the withdrawal. By allowing unlimited withdrawal prior to the start of negotiations, the Board gives each party an opportunity to go its separate way at a time when the withdrawal will not substantially jeopardize the multiemployer bargaining process. The Board" }, { "docid": "7250417", "title": "", "text": "written notice prior to the date set for renegotiation of the existing contract or the date on which negotiations actually commence. Once negotiations start, a party can withdraw only with the “mutu al consent” of the parties or where “unusual circumstances” exist. General Printing Co., 263 NLRB 591, 592 (1982), citing Retail Associates, Inc., supra, 120 NLRB at 395. This rule has been consistently followed by the Supreme Court and the Courts of Appeals. See, e.g., Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 405, 411 and n. 5, 102 S.Ct. 720, 721, 724 and n. 5, 70 L.Ed.2d 656 (1982); N.L.R.B. v. Hayden Electric, Inc., 693 F.2d 1358, 1363-64 and n. 7 (11th Cir. 1982); N.L.R.B. v. Custom Sheet Metal & Service Co., Inc., 666 F.2d 454, 457-58 and n. 11 (10th Cir.1981); N.L.R.B. v. Collier, 630 F.2d 595, 597 (8th Cir.1980); Andino v. N.L.R.B., 619 F.2d 147, 150 (1st Cir.1980); Authorized Air Conditioning Co. v. N.L. R.B., 606 F.2d 899, 906 (9th Cir.1979); N.L. R. B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135, 145-49 (2d Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); N.L.R.B. v. Beck Engraving Co., Inc., 522 F.2d 475, 480-81 (3d Cir.1975). Certain factual patterns have given rise to conflicting interpretations of the rule: for example, the Supreme Court only recently resolved the split between the circuits as to whether an impasse in bargaining constitutes an unusual circumstance justifying unilateral withdrawal from a multiemployer unit. Charles D. Bonanno Linen Service v. N.L.R.B., supra, 454 U.S. at 412-17, 102 S.Ct. at 725-27. However, the question of whether the notice to be given must actually be in writing has not, apparently, been addressed by any circuit. Most, including the Third Circuit, assume that it must, and utilize the NLRB’s language verbatim. See, e.g., N.L.R.B. v. Hayden Electric, Inc., supra, 693 F.2d at 1363; Andino v. N.L.R.B., supra, 619 F.2d at 150; Authorized Air Conditioning Co. v. N.L.R.B., supra, 606 F.2d at 906; N.L.R.B. v. Beck Engraving Co., Inc., supra, 522 F.2d at 481. Even those that do" }, { "docid": "12778560", "title": "", "text": "Association, with the exception of the Universal employees, returned to work. Universal contends that it is not bound by the new contract because of its withdrawal from the Association. However, multiemployer bargaining is “ * * * a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining”. National Labor Relations Board v. Truck Drivers Local Union No. 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), and it follows that such bargaining cannot be effective unless an employer who has designated an employees’ association as its bargaining representative is bound by the terms of the negotiated contract. N.L.R.B. v. Jeffries Banknote Company, 281 F.2d 893 (9th Cir. 1960). While it is recognized that membership in a multiemployer unit is wholly voluntary and that an employer is free to withdraw from it, the employer must clearly evince at an appropriate time its intention to do so. N.L.R.B. v. Sklar, 316 F.2d 145 (6th Cir. 1963) and the Board has ruled that withdrawal from a multiemployer unit is untimely absent union consent once negotiations on a new contract have started. The Kroger Company, 148 N.L.R.B. 569 (1964); Ice Cream Frozen Custard Employees, 145 N.L.R.B. 865 (1964); C & M Construction Company, 147 N.L.R.B. 843 (1964); Walker Electric Company, 142 N.L.R.B. 1214 (1963). This rule has recently been followed by the Second Circuit in N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (March, 1966), and under the facts of this case, it is concluded that it should be followed here. Another contention of Universal that its employees did not strike but voluntarily left their employment for better jobs was found to be without merit by the Board. This finding is supported by substantial evidence such as the concerted action of all employees of the members of the Association, including the employees of Universal, in refusing to report for work when the old contract expired and the Union called a strike. Also, as reflected by the record, the finding of the Board that Universal violated Section 8(a) (3) and (1) of the Act by" }, { "docid": "3999074", "title": "", "text": "protest the withdrawal, see N.L.R.B. v. John J. Corbett Press, Inc., 401 F.2d 673, 675 (2d Cir. 1968), its course of conduct constituted an implied consent. See Publicity Engravers, Inc., 161 N.L.R.B. 221, 63 L.R. R.M. 1236 (1966). It is clear from the record that Moran knew that Fairmont was the stumbling block on the load limit issue. Yet he was willing to accept quietly the benefit to be obtained by Fairmont’s withdrawal, in the form of a quick agreement to a contract, without insisting then that Fairmont sign the contract with the other employers and without even indicating to anyone at the time that he expected Fairmont to be bound. The Union’s willingness to bargain with Fairmont even after the agreement was reached, as well as its willingness to bargain with the other individual employers during the impasse, is further evidence of acquiescence. Atlas Sheet Metal Workers, Inc., 148 N.L.R.B. 27, 29, 56 L.R.R.M. 1442, 1443 (1964). Moran testified that “[t]he purpose of the meeting [on May 5], in our estimation, was to come to an agreement on the contract.” At the meetings between the Union and Fairmont, which were attended by the mediators, many economic issues were discussed. Therefore, the Union did more than simply demand that Fairmont sign the agreement executed with the Association, all that would have been required had the Union felt Fairmont was still a member of the Association. See C & M Construction Co., supra, 56 L.R.R.M. at 1272. Chairman Miller in his dissent stated the issues clearly and succinctly when he said: “It seems clear to me that the issue of load restrictions was a stumbling block to the negotiations, and it seems equally clear to me that all parties knew that Respondent’s firm position on this issue was not fully shared by other members of the group. As that situation became clear and as the parties neared their negotiating deadline, two things occurred . . . one the ‘final’ offer of the multiemployer negotiators failed to achieve a recommendation by the union negotiating committee and all concerned knew— as any experienced" }, { "docid": "11864092", "title": "", "text": "and $125,000 worth of work for Sonic [was] in progress at Respondent’s plant and the items being produced for Sonic could only be used by Sonic, so in that sense, these items were custom made.” . The Administrative Law Judge found that “[a]t this point in time Sonic was the purchaser of 75 percent of Respondent’s production.” . The telegram stated, “Custom Sheet Metal and Service Co., Inc., permanently withdraws the authority of Sheet Metal Contractors Association of Oklahoma, Inc., to represent it in all collective bargaining matters effective immediately.” . The contract as negotiated also contained an eight-day Union security clause in contrast to the thirty-day clause provided for in the “Kitchen Equipment Addendum.” . See, e.g., NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 95-96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957) (“The inaction of Congress with respect to multi-employer bargaining cannot be said to indicate an intention to leave the resolution of this problem to future legislation.”); Retail Clerks Union, No. 1550 v. NLRB, 330 F.2d 210, 212 (D.C.Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 41, 13 L.Ed.2d 31 (1964). (“This later phenomenon [a multi-employer bargaining unit] is nonstatutory in character and thus lacks the definiteness in terms of nature and obligation which it might have if Congress had expressly dealt with it.”) . See NLRB v. Acme Wise Works, Inc., 582 F.2d 153 (2d Cir. 1978); NLRB v. Beck Engraving Co., Inc., 522 F.2d 475 (3d Cir. 1975); McAx Sign Co., Inc. v. NLRB, 576 F.2d 62 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); NLRB v. Siebler Heating & Air Conditioning, 563 F.2d 366 (8th Cir. 1977), cert. denied, 437 U.S. 911, 98 S.Ct. 3104, 57 L.Ed.2d 1142 (1978); Authorized Air Conditioning Co., Inc. v. NLRB, 606 F.2d 899 (9th Cir. 1979), 606 F.2d 899 (9th Cir. 1978), cert. denied, 445 U.S. 950, 100 S.Ct. 1598, 63 L.Ed.2d 785 (1980). . See NLRB v. Spun-Jee Corp., 385 F.2d 379 (2d Cir. 1967) (remand to NLRB); Spun-Jee Corp., 171 N.L.R.B. 557 (1968) (adopts extreme" }, { "docid": "2143194", "title": "", "text": "Cir. 1972). See N.L.R.B. v. Associated Shower Door Co., 512 F.2d 230, 232 (9th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975) (dictum). As Mr. Justice Brennan observed, speaking for the Court in N.L.R.B. v. Truck Drivers Local Union No. 449 (Buffalo Linen Supply Co.), 353 U.S. 87, 96, 77 S.Ct. 643, 647-48, 1 L.Ed.2d 676, 682 (1957): “Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multiemployer bargaining as a means of bargaining on an equal basis with a large union and avoiding the competitive disadvantages resulting from nonuniform contractual terms. The ultimate problem is the balancing of the conflicting legitimate interests.” We strike that balance by now joining our sister circuits in holding that an impasse will justify a party’s unilateral withdrawal from multi-employer negotiations. And, while the balance in national labor policy is entrusted primarily to the NLRB, the courts of appeals are not entirely without power of review when the “record amply supports the conclusion that the parties were at loggerheads” at the time when a member withdraws from multi-employer bargaining despite a finding to the contrary by the Board. N.L.R.B. v. Beck Engraving Co., supra, 522 F.2d at 484 (reversing the Board’s conclusion that there was no impasse); see N.L.R.B. v. Hi-Way Billboards, Inc., supra, 500 F.2d 181 (reversing Board’s finding that impasse is akin to hiatus in negotiations.) In view of the history of this labor dispute, the conclusion is inescapable that negotiations had reached an impasse on January 19 when the union received the withdrawal letter signed by nineteen members of the Association. The Association here was formed because the small independent employers felt that they were at a disadvantage in bargaining individually with Local 455 as was evident from their consistent failure to obtain as good a contract as Allied. Multi-employer bargaining is recognized as a means of achieving bargaining equality for the em ployers. Buffalo Linen Supply Co., supra, 353 U.S. at 96, 77 S.Ct. 643. When the union refused to budge on any of the fifty-odd" }, { "docid": "11864093", "title": "", "text": "(D.C.Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 41, 13 L.Ed.2d 31 (1964). (“This later phenomenon [a multi-employer bargaining unit] is nonstatutory in character and thus lacks the definiteness in terms of nature and obligation which it might have if Congress had expressly dealt with it.”) . See NLRB v. Acme Wise Works, Inc., 582 F.2d 153 (2d Cir. 1978); NLRB v. Beck Engraving Co., Inc., 522 F.2d 475 (3d Cir. 1975); McAx Sign Co., Inc. v. NLRB, 576 F.2d 62 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); NLRB v. Siebler Heating & Air Conditioning, 563 F.2d 366 (8th Cir. 1977), cert. denied, 437 U.S. 911, 98 S.Ct. 3104, 57 L.Ed.2d 1142 (1978); Authorized Air Conditioning Co., Inc. v. NLRB, 606 F.2d 899 (9th Cir. 1979), 606 F.2d 899 (9th Cir. 1978), cert. denied, 445 U.S. 950, 100 S.Ct. 1598, 63 L.Ed.2d 785 (1980). . See NLRB v. Spun-Jee Corp., 385 F.2d 379 (2d Cir. 1967) (remand to NLRB); Spun-Jee Corp., 171 N.L.R.B. 557 (1968) (adopts extreme financial hardship exception). See also NLRB v. Siebler Heating & Air Conditioning Inc., 563 F.2d 366, 371 (8th Cir. 1977), cert. denied, 437 U.S. 911, 98 S.Ct. 3104, 57 L.Ed.2d 1142 (1978) (“While we do not view this as the principal grounds for withdrawal, the record reveals that non-union employers were getting a larger and larger share of the available residential work and genuine economic distress was only a step removed.”) . See NLRB v. Southwestern Colorado Contractors Assn., 447 F.2d 968 (10th Cir. 1971). . See NLRB v. Independent Assn. of Steel Fabricators, Inc., 582 F.2d 135 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); NLRB v. Beck Engraving Co., Inc., 522 F.2d 475 (3d Cir. 1975); NLRB v. Hi-Way Billboards, Inc., 500 F.2d 181 (5th Cir. 1974); Fairmont Foods Co. v. NLRB, 471 F.2d 1170 (8th Cir. 1972); NLRB v. Associated Shower Door Co., Inc., 512 F.2d 230 (9th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975); NLRB v. Tulsa Sheet" }, { "docid": "14208211", "title": "", "text": "vote of its membership. On December 8, 1965, respondent sent the following letter to Wayne Elwell, the chairman of the bargaining committee for the employers (with a copy to the union): “Dear Mr. Elwell: The Members of International Typographical Union Local 47, have left the positions they held in my composing room. There are no longer any I.T.U. members employed at Corbett Press. I, therefore, am withdrawing from the New Haven Union Employing Printers Multiple Bargaining Unit, which negotiates with I.T.U. Local 47, effective immediately. I withdraw my designation of authority from this group to represent me in future negotiations with International Typographical Union, Local 47. Very truly yours, The John J. Corbett Press /s/ Robert E. Frankes Robert E. Frankes Vice President.” Thereafter, the contract negotiations between the employers and the union were completed and agreement was reached. The union requested respondent to sign the collective agreement but respondent refused. The union then filed the unfair labor practice charge which has led to the present proceeding. A member of the multi-employer bargaining unit is required to sign a collective agreement negotiated in his behalf by representatives of the unit. NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). When a member of a multi-employer bargaining unit attempts to withdraw from the unit during negotiations his withdrawal is “untimely” and therefore ineffectual to relieve him from the obligations of any agreement that is ultimately reached, absent special circumstances or consent by the union. NLRB v. Sheridan Creations, Inc., supra; NLRB v. Spun-Jee Corp., 385 F.2d 379, 381-82 (2d Cir. 1967). Respondent advances a number of arguments as to why it should be relieved from the obligation to execute the collective agreement negotiated with the union by the multi-employer unit from which it sought to withdraw. In the first place respondent claims that the union “acquiesced” in its withdrawal from the multi-employer unit. The claim is highly technical, since it is based on the union’s silence and inaction and on such “overt acts as requesting return of" }, { "docid": "7250418", "title": "", "text": "Fabricators, Inc., 582 F.2d 135, 145-49 (2d Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); N.L.R.B. v. Beck Engraving Co., Inc., 522 F.2d 475, 480-81 (3d Cir.1975). Certain factual patterns have given rise to conflicting interpretations of the rule: for example, the Supreme Court only recently resolved the split between the circuits as to whether an impasse in bargaining constitutes an unusual circumstance justifying unilateral withdrawal from a multiemployer unit. Charles D. Bonanno Linen Service v. N.L.R.B., supra, 454 U.S. at 412-17, 102 S.Ct. at 725-27. However, the question of whether the notice to be given must actually be in writing has not, apparently, been addressed by any circuit. Most, including the Third Circuit, assume that it must, and utilize the NLRB’s language verbatim. See, e.g., N.L.R.B. v. Hayden Electric, Inc., supra, 693 F.2d at 1363; Andino v. N.L.R.B., supra, 619 F.2d at 150; Authorized Air Conditioning Co. v. N.L.R.B., supra, 606 F.2d at 906; N.L.R.B. v. Beck Engraving Co., Inc., supra, 522 F.2d at 481. Even those that do not require notice in writing, emphasize the importance of the requirement that an employer not be able to withdraw from a multiemployer bargaining unit without notice to the union. As the Second Circuit has stated, For an employer to withdraw bargaining authorization from a multiemployer association without notifying the union is not simply a breach of etiquette. Such tacit withdrawal not only withholds knowledge from the union about the composition of the bargaining unit, but also deprives it of the opportunity either to initiate independent negotiations with the withdrawing party or to file a complaint promptly with the Board. N.L.R.B. v. Independent Association of Steel Manufacturers, Inc., supra, 582 F.2d at 149. Indeed, the case primarily relied upon by Fashion Associates, see Fashion Associates’ Brief in Opposition to Motion for Summary Judgment at 13-14; Fashion Associates’ Letter Brief (7/25/84) at 1-2, itself states that to be effective as against the union, an employer’s withdrawal must show an unequivocal manifestation of an intent to withdraw which must be brought to the union’s attention in a timely" }, { "docid": "6110973", "title": "", "text": "the threat of withdrawal as a bargaining tool. See N.L.R.B. v. L.B. Priester and Son, Inc., 669 F.2d 355, 360 (5th Cir.1982). Once negotiations have begun on a contract, the employer may not withdraw absent consent of the union or “unusual circumstances”. Charles D. Bonanno Linen Service v. N.L.R.B., 454 U.S. 409 [404], 410-11 [102 S.Ct. 720, 724-25, 70 L.Ed.2d 656] (1982); N.L.R.B. v. Custom Wood Specialities, Inc., 622 F.2d 381, 384 (8th Cir.1980). The district court rejected Action’s argument that the commencement of early negotiations, allegedly without adequate notice to Action, constituted “unusual circumstances.” The district court distinguished Acropolis Painting and Decorating, 272 NLRB 150 (1984), in which the NLRB held that the employer could withdraw from the multi-employer unit even though negotiations had already begun; the district court interpreted certain contract provision in Acropolis Painting as allowing withdrawal not only from the agreement, but also during negotiations. The district court thus concluded that Action was bound by the collective bargaining agreement which extended through April 30, 1985. Action timely appeals from the final judgment of the district court dated June 30, 1987. That judgment confirmed the arbitration award, ordered Action’s compliance with that award, and awarded Local 292 $191,769.94, the amount of diverted wages and benefits as determined by the Labor-Management Committee. The sole issue on appeal is whether the district court properly concluded that Action’s attempted withdrawal from the multi-employer bargaining unit was invalid. Multi-employer bargaining, common in numerous industries, has long been a useful tool in effectuating the collective bargaining process and promoting labor peace. Nonetheless, multi-employer bargaining has presented the National Labor Relations Board (“the Board”) and the courts with various problems, one being the right of an employer to withdraw from the multi-em-ployer bargaining unit and terminate the arrangement. Originally, employers and the union were permitted to withdraw from the multi-employer bargaining unit even during bargaining. Charles D. Bonnano Linen Service, Inc. v. NLRB, 454 U.S. 404, 410, 102 S.Ct. 720, 724, 70 L.Ed.2d 656 (1982). However, in Retail Associates, Inc., 120 NLRB 388 (1958), the Board established standards circumscribing the timing of withdrawal" }, { "docid": "2143193", "title": "", "text": "it affects the withdrawal rights of a member of a multi-employer bargaining unit. The policy considerations involved are easy to formulate but difficult to reconcile. The rule against untimely withdrawal is designed to preserve the stability of multi-employer bargaining which would be impaired if an employer could withdraw whenever it found the results of such bargaining uncongenial or if it felt that it could use the threat of withdrawal as bargaining leverage. See N.L.R.B. v. Sheridan Creations, Inc., supra, 357 F.2d at 248. By the same token, however, the objectives of collective bargaining would be ill-served by compelling employers to remain in the bargaining unit once it becomes clear that no progress is being made within that framework. Thus, all the circuits which have addressed the issue have concluded that a genuine impasse in negotiations will justify an employer’s unilateral withdrawal from multiemployer bargaining. N.L.R.B. v. Beck Engraving Co., 522 F.2d 475 (3d Cir. 1975); N.L.R.B. v. Hi-Way Billboards, Inc., 500 F.2d 181 (5th Cir. 1974); Fairmont Foods Co. v. N.L.R.B., 471 F.2d 1170 (8th Cir. 1972). See N.L.R.B. v. Associated Shower Door Co., 512 F.2d 230, 232 (9th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975) (dictum). As Mr. Justice Brennan observed, speaking for the Court in N.L.R.B. v. Truck Drivers Local Union No. 449 (Buffalo Linen Supply Co.), 353 U.S. 87, 96, 77 S.Ct. 643, 647-48, 1 L.Ed.2d 676, 682 (1957): “Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multiemployer bargaining as a means of bargaining on an equal basis with a large union and avoiding the competitive disadvantages resulting from nonuniform contractual terms. The ultimate problem is the balancing of the conflicting legitimate interests.” We strike that balance by now joining our sister circuits in holding that an impasse will justify a party’s unilateral withdrawal from multi-employer negotiations. And, while the balance in national labor policy is entrusted primarily to the NLRB, the courts of appeals are not entirely without power of review when the “record amply supports the conclusion that the" }, { "docid": "2143201", "title": "", "text": "Association. Six of these respondents had already in effect withdrawn without notice by executing contracts with Local 810 The stability of labor relations requires that such tacit withdrawals without notice be viewed as ineffectual. The Board has consistently taken the position that withdrawal from multi-employer bargaining is effective only when unequivocally communicated to the other party. Goodsell & Vocke, Inc., 223 N.L.R.B. 60, 66 (1976), enforced, 559 F.2d 1141 (9th Cir. 1977); Pomona Building Materials Co., 174 N.L.R.B. 558, 560 (1969), enforced, 73 L.L.R.M. 2944 (9th Cir. 1970). At least one circuit has taken the same view, N.L.R.B. v. Dover Tavern Owners’ Association, 412 F.2d 725, 728 n.7 (3d Cir. 1969), and two others have indicated in dicta that companies withdrawing from multi-employer bargaining in the face of an impasse must give unequivocal notice to the union. N.L.R.B. v. Association Shower Door, Inc., supra, 512 F.2d at 232; N.L.R.B. v. Central Plumbing, supra, 492 F.2d at 1255. We decline to endorse a different rule here. For an employer to withdraw bargaining authorization from a multi-employer association without notifying the union is not simply a breach of etiquette. Such tacit withdrawal not only withholds knowledge from the union about the composition of the bargaining unit, but also deprives it of the opportunity either to initiate independent negotiations with the withdrawing party or to file a complaint promptly with the Board. To abrogate the notice requirement when one party leaves multi-employer bargaining in the face of an impasse would interject a further element of uncertainty into a negotiating context already destabilized by withdrawal. We conclude therefore that respondents’ withdrawal from multi-employer bargaining was not effective until communicated to the union. Accordingly, those employers who signed union security contracts with Local 810 prior to January 19 violated § 8(a)(5) by disabling themselves from bargaining with the union recognized by the Association. Ill THE REFUSAL TO BARGAIN Two questions remain. First, were respondents bound, in spite of their withdrawal, to the terms of the stipulation of settlement negotiated by five members remaining in the Association? Second, were those respondents who did not violate §" }, { "docid": "2143191", "title": "", "text": "attended by non-members of the Association. Relying on United States v. Bigos, 459 F.2d 639 (1st Cir.), cert. denied sub nom. Raimondi v. United States, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972), respondents contend that the presence of non-clients at the Association meetings would vitiate the privilege only if that presence were indicative of an intent that the communication not be confidential. Such an intent, they submit, is absent here. Although we question whether statements made at an open meeting attended by nonmember employers could reasonably have been intended as confidential, we conclude that there was sufficient other evidence of unlawful assistance apart from Brickman’s statements to sustain the § 8(a)(1) violation. By inviting the president of a non-incumbent union to address the Association and by commenting on that union’s contract provisions, the Association’s agents plainly gave support to a labor organization in violation of § 8(a)(2) and in derogation of an existing bargaining relationship protected by §§ 8(a)(1) and (5). See N.L.R.B. v. Getlan Iron Works, Inc., 377 F.2d 894, 896 (2d Cir. 1967); N.L.R.B. v. Fotochrome, Inc., 343 F.2d 631, 632-33 (2d Cir.), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). II WITHDRAWAL FROM THE ASSOCIATION — IMPASSE The rule in this circuit is that once negotiations have begun, a member’s attempt to withdraw from a multi-employer bargaining unit is “‘untimely’ and there fore ineffectual to relieve him from the obligations of any agreement that is ultimately reached, absent special circumstances or consent by the union.” N.L.R.B. v. John J. Corbett Press, 401 F.2d 673, 675 (2d Cir. 1968). Accord, N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). The questions we face here are: (1) whether an impasse constitutes such a special circumstance as to justify unilateral withdrawal; (2) whether an impasse in negotiations in fact occurred; and (3) whether notice to the union of withdrawal is a prerequisite to its effectiveness. In this circuit, we have never directly ruled on an actual impasse situation as" }, { "docid": "6110972", "title": "", "text": "March 8, 1985, Action filed an action in the Hennepin County (Minnesota) District Court to vacate the Committee’s award. Local 292 removed the action, styled as a Motion to Enforce the Arbitration Award and for Attorney’s Fees, to federal district court and moved for summary judgment. On September 10, 1985, the district court granted the motion and confirmed the arbitration award. Although the district court found that Action’s notice of termination complied with the 150-day period specified by the Letter of Assent-A, it agreed with Local 292’s argument that as a matter of law Action’s otherwise timely notice was ineffective because it was given after contract negotiations had already begun. The district court reasoned as follows: The courts have consistently noted that multi-employer bargaining serves an important function in promoting labor peace through strengthened labor bargaining. These multi-employer bargaining units are viable only if stable. Accordingly, the courts have adopted a strict rule which governs the rights of the parties to terminate the multi-em-ployer bargaining arrangement. The goal of the strict rule is to remove the threat of withdrawal as a bargaining tool. See N.L.R.B. v. L.B. Priester and Son, Inc., 669 F.2d 355, 360 (5th Cir.1982). Once negotiations have begun on a contract, the employer may not withdraw absent consent of the union or “unusual circumstances”. Charles D. Bonanno Linen Service v. N.L.R.B., 454 U.S. 409 [404], 410-11 [102 S.Ct. 720, 724-25, 70 L.Ed.2d 656] (1982); N.L.R.B. v. Custom Wood Specialities, Inc., 622 F.2d 381, 384 (8th Cir.1980). The district court rejected Action’s argument that the commencement of early negotiations, allegedly without adequate notice to Action, constituted “unusual circumstances.” The district court distinguished Acropolis Painting and Decorating, 272 NLRB 150 (1984), in which the NLRB held that the employer could withdraw from the multi-employer unit even though negotiations had already begun; the district court interpreted certain contract provision in Acropolis Painting as allowing withdrawal not only from the agreement, but also during negotiations. The district court thus concluded that Action was bound by the collective bargaining agreement which extended through April 30, 1985. Action timely appeals from the final" }, { "docid": "14208212", "title": "", "text": "required to sign a collective agreement negotiated in his behalf by representatives of the unit. NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). When a member of a multi-employer bargaining unit attempts to withdraw from the unit during negotiations his withdrawal is “untimely” and therefore ineffectual to relieve him from the obligations of any agreement that is ultimately reached, absent special circumstances or consent by the union. NLRB v. Sheridan Creations, Inc., supra; NLRB v. Spun-Jee Corp., 385 F.2d 379, 381-82 (2d Cir. 1967). Respondent advances a number of arguments as to why it should be relieved from the obligation to execute the collective agreement negotiated with the union by the multi-employer unit from which it sought to withdraw. In the first place respondent claims that the union “acquiesced” in its withdrawal from the multi-employer unit. The claim is highly technical, since it is based on the union’s silence and inaction and on such “overt acts as requesting return of the union labels.” It is clear that at no time did the union intend to consent to the respondent's withdrawal. The union was under no duty to “protest” in any formal manner and the Board properly held that nothing done or omitted by the union excused respondent’s unfair labor practice. Citing the opinion of this court in NLRB v. Spun-Jee Corp., supra, respondent argues that the withdrawal which would otherwise be untimely was justified by “special circumstances.” The circumstances to which respondent refers are that at the time of its withdrawal (1) it no longer had any union employees and (2) the negotiations had reached an impasse. Corbett discharged its union employees during the course of the negotiations. Since several months later the General Counsel declined to bring an unfair labor practice charge, it must be assumed for purposes of this proceeding that the discharge was not improper under the Act. However the presence or absence of employees who belonged to the union is irrelevant to respondent’s duty to bargain and to execute the completed" }, { "docid": "2409350", "title": "", "text": "negotiate with the Union on an individual basis and invited the Union to suggest dates on which such negotiations might be held. On March 10 the striking employees voted to accept the Council’s contract proposals and to end the strike. The new multiem-ployer agreement became effective on March 10, 1978, for a term of three years. On March 14 Marine refused to sign the new multiemployer contract and continued to refuse to abide by its terms and conditions. The Board’s decision that Marine violated sections 8(a)(1) and (5) of the Act, with respect to both the unilateral withdrawal and the refusal to execute the contract, flowed from its conclusion that Marine’s putative withdrawal from the Council on March 6 was unlawful. Before the Board, the General Counsel contended that the occurrence of a bargaining impasse does not constitute an unusual circumstance that will justify an employer’s unilateral withdrawal from multiemployer bargaining once negotiations have begun. Marine argued that case law in this circuit and others establishes that impasse is indeed a sufficient condition to exonerate a withdrawal that would otherwise violate the Act. The parties before this court press these same arguments. Thus, the question we must decide is whether unilateral withdrawal by a member employer from a multiemployer bargaining unit solely because of impasse constitutes a refusal to bargain in violation of sections 8(a)(1) and (5) of the Act. We hold as a matter of law that it does. II. Our resolution of this issue requires consideration of the Board’s policy toward and rules governing multiemployer bargaining. The Board has consistently held that employers may not, absent unusual circumstances, withdraw from multiemployer bargaining units once negotiations have commenced. Retail Associates, Inc., 120 N.L.R.B. 388, 395 (1958). Prohibiting such withdrawals contributes to the stability of multiemployer units and prevents the use of the scope of the bargaining unit as a bargaining lever to secure an economic advantage for one side over the other. See NLRB v. Sheridan Creations, Inc., 357 F.2d 245, 248 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). This furthers" } ]

[ { "docid": "22722367", "title": "", "text": "of Civil Procedure 12(b)(6) for failure to state a cognizable claim under the Equal Protection Clause. Relying on Circuit precedent, the Court of Appeals for the Sev enth Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a “ ‘spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective.’” 160 F. 3d 386, 387 (1998) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7 1995)). It determined that Olech’s complaint sufficiently alleged such a claim. 160 F. 3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a “class of one” where the plaintiff did not allege membership in a class or group. 527 U. S. 1067 (1999). Our cases have recognized successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). In so doing, we have explained that “‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ ” Sioux City Bridge Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 352 (1918)). That reasoning is applicable to this ease. Oleeh’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary”" } ]

[ { "docid": "10700935", "title": "", "text": "Equal Protection The Equal Protection Clause provides, “No State shall ... deny to any persons within its jurisdiction the equal protection of laws.” U.S. Const, amend. XIV, § 1. “The purpose of the equal protection clause ... is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918). Unequal treatment of “ ‘those who are entitled to be treated alike[ ] is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.’ ” Batra v. Bd. of Regents of Univ. of Neb., 79 F.3d 717, 721 (8th Cir.1996) (quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944)). “The good faith of [state] officers and the validity of their actions are presumed; when assailed, the burden of proof is upon the complaining party.” Sunday Lake, 247 U.S. at 353, 38 S.Ct. 495. Without more, “opprobrious epithets” like “ ‘willful’ and ‘malicious’ ” and characterizations of an officer’s conduct “as an unequal, unjust, and oppressive administration of the laws” are not enough. Snowden, 321 U.S. at 10, 64 S.Ct. 397. The Robbinses allege the officers violated their equal protection rights by treating them “differently than multiple other towing and wrecker services.” See, e.g., City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (explaining equal protection is “essentially a direction that all persons similarly situated should be treated alike”). The Supreme Court recognizes such a “class of one” equal protection claim — meaning “the plaintiff did not allege membership in a class or group”— “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060" }, { "docid": "17266851", "title": "", "text": "n. 4 (10th Cir.1997) (issue of indispensable party is not jurisdictional); 4 James Wm. Moore et al., Moore’s Federal Practice § 19.02[4][c] (3d ed.1998) (judgment rendered in absence of indispensable party not subject to collateral attack); 7 Charles Alan Wright et al., Federal Practice & Procedure: Civil Sd § 1611 (3d ed.2001) (same). The notification about the purpose of the Linn County lawsuit which Continental received at the hearing on its motion to intervene was sufficient to satisfy basic due process requirements. For the above reasons, the Court sustains defendants’ motions for judgment on the pleadings on plaintiffs procedural due process claim. III. Equal Protection Claim (Count II) Continental alleges that defendants violated its right to equal protection of the laws when it did not uniformly apply the Linn County zoning regulations. The Fourteenth Amendment prohibits a state from denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. At the heart of any equal protection claim must be an allegation of being treated differently than those similarly situated. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998). In addition, unless plaintiff alleges a violation of a fundamental right or discrimination against a suspect class, defendants only need a rational justification for the different treatment. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (“class of one” must show that he has been intentionally treated differently from others similarly situated and no rational basis for difference in treatment). The Board argues that Continental has failed to state an equal protection claim. Coal companies are a non-suspect class ’ and rational basis scrutiny applies. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-46, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Davoll v. Webb, 194 F.3d 1116, 1145 (10th Cir.1999). Under the rational basis test, the Court must uphold the policy if any reasonably conceivable state of facts could provide a rational basis for the classification. Spragens v. Shalala, 36" }, { "docid": "3832777", "title": "", "text": "a rational basis for its decision not to bus Charter One students — namely, avoiding the “unique and additional costs” that such busing would present. Charter One appeals. II. ANALYSIS We review a grant of summary judgment de novo, construing all facts in favor of the non-moving party. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 974 (7th Cir.2004). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that he or she was (1) deprived of a federal right, privilege, or immunity (2) by any person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (citing 42 U.S.C. § 1983). The federal right in question here is derived from the Equal Protection Clause of the Fourteenth Amendment. The Equal, Protection Clause provides that “no State shall ... deny to any persons within its jurisdiction the equal protection of laws.” U.S. Const, amend. XIV, § 1. In so providing, “the Equal Protection Clause gives rise to a cause of action on behalf of a ‘class of one’ where the plaintiff did not allege membership in a class or group.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). “[Successful equal protection claims brought by a ‘class of one’ ” have been recognized “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564, 120 S.Ct. 1073. Here, the district court properly construed Charter One’s complaint as alleging a class of one equal protection claim. See Olech, 528 U.S. at 564 n. *, 120 S.Ct. 1073 (“Whether the complaint alleges a class of one or of [more] is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis.”). Charter One argues that local government officials within the RUSD denied the school and its students the benefit of busing otherwise provided to all others similarly situated without a rational" }, { "docid": "21657567", "title": "", "text": "analyzed under the same standards used to evaluate federal equal protection claims. See Small v. Horn, 722 A.2d 664, 672 n.13 (Pa. 1998). Mindful of this important observation, we proceed to analyze the parties’ arguments pursuant to the Equal Protection Clause. A. Equal Protection In outlining their equal protection claim, Plaintiffs contend that New Hope was— and Plaintiffs, by extension, were—treated differently from other similarly situated charter schools. Plaintiffs further contend that Defendants can articulate no rational basis for the difference in treatment. The Equal Protection Clause of the Fourteenth Amendment commands that “[n]o State shall ,.. deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The Clause does not prohibit differentiation among classes of persons, but rather restrains a state from “treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citation omitted). Where a plaintiff does not allege membership in a particular group, he or she may advance an equal protection challenge on a “class of one” theory by proving that, (1) “she has been intentionally treated differently from others similarly situated,” and (2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citations omitted). Plaintiffs here proceed on the “class of one” theory. Entities are similarly situated for purposes of the Equal Protection Clause when they are alike “in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326) (internal quotation marks omitted). In our Circuit, a plaintiff need not show that comparators are identical in all relevant aspects but rather that they share pertinent similarities. See Borrell v. Bloomsburg Univ., 955 F.Supp.2d 390, 405 (M.D. Pa. 2013). “Determining whether an individual is ‘similarly situated’ to another individual is a case-by-case fact-intensive inquiry.” Id. (quoting Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D. Pa. Sept." }, { "docid": "7182836", "title": "", "text": "U.S. at 586, 106 S.Ct. 1348, and may not rely on “conclusory allegations,” Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). B. Equal Protection The Fourteenth Amendment comr mands that “[n]o State shall ... deny to any person within- its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, §1. The Second Circuit has held that a plaintiff ’may bring an equal protection claim based on racial discrimination: (1) where a'law or policy expressly classifies on the basis of race, (2) where a facially neutral law or policy is applied in an intentionally discriminatory manner, or (3) where a facially neutral statute or policy has an adverse effect and was motivated by discriminatory animus. Brown v. Oneonta, 221 F.3d 329, 337 (2d Cir.2000), overruled, in part on other grounds' by Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); see also Snoussi v. Bivona, No. 05-CV-3133 (RJD)(LB), 2010’ WL 3924255, at =“4-5 (E.D.N.Y. Feb. 17, 2010) (report and recommendation), adopted, 2010 WL 3924683 (E.D.N.Y; Sept. 29, 2010). Alternatively, a plaintiff may claim an equal protection violation under the “class of one” theory, asserting that he or she was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment,” despite the fact that’’the plaintiff does not claim membership in a particular class or group. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Giordano v. City of New York, 274 F.3d 740, 743 (2d Cir.2001). Generally, a plaintiff challenging law enforcement conduct on equal protection grounds “must demonstrate that ... he was treated differently from other similarly-situated individuals.” Vilkhu v. City of New York, No. 06-CV-2095 (CPS)(JO), 2008 WL 1991099, at *5 (E.D.N.Y. May 5, 2008). However, a plaintiff need not “show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection” where he or she has alleged “an express racial classification, or alleges that a facially-neutral" }, { "docid": "10612245", "title": "", "text": "under the Fifth and Fourteenth Amendments,” without any further elaboration or supporting allegations. Am. Compl. ¶ 96. Where, as here, a plaintiff does not claim to be a member of a constitutionally protected class, he may bring an Equal Protection claim pursuant to one of two theories: (1) selective enforcement, or (2) “class of one.” In order to state a viable equal protection claim on a theory of selective enforcement or selective treatment, a plaintiff must show that: (1) “[he], compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, or to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the [plaintiff].” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.1992)). In order to adequately allege an equal protection claim on a “class of one” theory, a plaintiff must demonstrate that: (1) he was “intentionally treated differently from others similarly situated,” and (2) “that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); see also Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (examining Olech). Stated differently, a plaintiff asserting a “class of one” equal protection claim must allege that the intentional disparate treatment alleged to state the first element of the claim was “wholly arbitrary” or “irrational.” Aliberti v. Town of Brookhaven, 876 F.Supp.2d 153, 163-64 (E.D.N.Y.2012) (citing Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001)); see also Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010), cert. denied — U.S. -, 131 S.Ct. 2970, 180 L.Ed.2d 247 (2011). Plaintiff is required to allege differential treatment from “similarly situat ed” individuals in- order to state a viable equal protection claim under either theory. See, e.g., Ruston v. Town Bd." }, { "docid": "16739375", "title": "", "text": "so. Finally, LaBella relies on defendants’ refusal to let LaBella partition off portions of its restaurant while it repaired the damage from the fire, as it later permitted O’Neil’s Restaurant to do while undergoing renovations. The Equal Protection Clause of the Fourteenth Amendment provides that “no State shall ... deny to any persons within its jurisdiction the equal protection of laws.” U.S. Const, amend. XIV, § 1. Traditionally, the Equal Protection Clause is understood as protecting members of vulnerable groups from unequal treatment attributable to the state. See Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir.2004). But it also proscribes state action that irrationally singles out and targets an individual for discriminatory treatment as a so-called “class-of-one.” Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). All equal protection claims, regardless of the size of the disadvantaged class, are based on the principle that, under “like circumstances and conditions,” people must be treated alike, unless there is a rational reason for treating them differently. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601-02, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72, 7 S.Ct. 350, 30 L.Ed. 578 (1887)). Thus, a plaintiff states a class-of-one equal protection claim by alleging that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564, 120 S.Ct. 1073. Because we conclude that LaBella’s claim does not satisfy the first element of that inquiry, we affirm the district court’s dismissal. To be considered “similarly situated,” a plaintiff and his comparators (those alleged to have been treated more favorably) must be identical or directly comparable in all material respects. Re-get, 595 F.3d at 695. The “similarly situated” analysis is not a “precise formula,” but we have stated repeatedly that what is “clear [is] that similarly situated individuals must be very similar indeed.” McDonald v. Vill. of Winnetka, 371" }, { "docid": "3011355", "title": "", "text": "Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburne v. Cleburne Living Cent., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Here, plaintiff does not allege that he is part of a protected class and, thus, appears to be bringing his claim pursuant to the Equal Protection Clause under the “class of one” theory. In Prestopnik v. Whelan, the Second Circuit explained the difference between “class of one” equal protection claims and more traditional equal protection claims: “The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001). While this clause “is most commonly used to bring claims alleging discrimination based on membership in a protected class,” it may also be used to bring a “class of one” equal protection claim. Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir.2005); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In a “class of one” case, the plaintiff uses “the existence of persons in similar circumstances who received more favorable treatment than the plaintiff ... to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise— is all but certain.” Neilson, 409 F.3d at 105. 249 Fed.Appx. 210, 212-13 (2d Cir.2007); see also King v. N.Y. State Div. of Parole, 260 Fed.Appx. 375, 379 (2d Cir.2008) (“In [Olech], the Supreme Court recognized the viability of an Equal Protection claim ‘where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ ” (quoting Olech, 528 U.S. at 564, 120 S.Ct. 1073)). As defendants correctly argue, to the extent that plaintiff is attempting to assert a “class of one” claim under the Equal Protection Clause, that claim cannot survive summary judgment in the wake of Engquist v." }, { "docid": "3607575", "title": "", "text": "district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.’ ” (quoting Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir.1999))). When, as here, a defendant attaches to the motion to dismiss documents that are matters of public record, the court may consider those documents in deciding the motion to . dismiss. See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011); Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir.2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.”). B. The Federal Equal Protection Claim In response to the City’s motion to dismiss, Maryland Manor contends that it properly alleged a class-of-one equal protection claim. “To establish such a claim, the plaintiff must show that (1) he or she was treated differently from others similarly situated and (2) there was no rational basis for the disparate treatment.” Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir.2007) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). The City argues that Maryland Manor’s class-of-one equal protection claims must be dismissed for three reasons. First, the City argues that the six properties the complaint identifies as similarly situated to Maryland Manor’s proposed development are not similarly situated because they are not “high rise complexes ... located adjacent to a two-lane collector street.” (Docket Entry No. 40, 4). 1717 Bissonnet will be a 23-story building on a two-lane collector street. By contrast, LaMaison at Revere Apartments is a four-story apartment complex located on a single-lane local street; Fairmount Museum District Apartments is a four-story apartment complex located on a two-lane collector street; the Medical Clinic of Houston is a two-story commercial building located at the intersection of a one-lane local street and a two-lane local street; Sonoma will be a sev en-story building located at the intersection of one-lane local streets; Millenium Greenway is a four-story apartment complex located on" }, { "docid": "2845356", "title": "", "text": "therefore be permitted to proceed on her liberty interest claim against Ficca, Richer, and Geisinger. 3. Equal Protection Count II of Borrell’s Amended Complaint asserts a claim for violation of the Equal Protection Clause. Borrell’s equal protection claim is based on a “class of one” theory. The Equal Protection Clause of the Fourteenth Amendment directs that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court outlined the “class of one” theory of equal protection. Under a “class of one” claim, a plaintiff asserts that “he has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.” Id. at 564, 120 S.Ct. 1073. According to the Third Circuit, to state a “class of one” claim, a plaintiff must allege that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill, 455 F.3d at 239. As to the first element, “[a]t the motion to dismiss stage, [the plaintiff] must allege facts sufficient to make plausible the existence of ... similarly situated parties.” Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238 (3d Cir.2011). While “ ‘[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects,’ ” Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 825 (3d Cir.2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)), “the law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike.” Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D.Pa.2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J.2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D.Pa. Aug. 21, 2012). “Determining whether an" }, { "docid": "18250000", "title": "", "text": "Cir.2006). The owners of two of the homes sued the city, alleging in part that it had violated their equal protection rights by refusing to permit reconnection of their homes’ utilities while permitting reconnection of the utilities of similarly situated homes. Id. at 381. The district court granted summary judgment in favor of the city, holding that its actions were rationally related to its “obligation to follow state law to ‘protect the public beaches from interference.’ ” Id. at 379. We reversed the district court’s grant of summary judgment, explaining that the Equal Protection Clause required a rational basis for the city’s differential treatment of similarly situated homes and setting forth the elements of the homeowners’ claim: The appellants’ equal protection claim is based on their contention that there are a number of similarly situated homes that were allowed reconnection of their utility services.... To bring such an equal protection claim for denial of zoning permits, the appellant must show that the difference in treatment with others similarly situated was irrational. Id. at 381 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (“Our cases have recognized successful equal protection claims ... where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”)); see also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 n. 3 (5th Cir.2007) (“[T]his court has rejected the argument that all ‘class of one’ equal protection claims require a showing of vindictive animus.”). We held explicitly that the homeowners’ equal protection claim did not sound in “selective enforcement” or “personal vindictiveness” and was not subject to the “higher eviden-tiary burden that would normally be required by either claim.” Mikeska, 451 F.3d at 381 n. 4. This precedent compels our holding that the Lindquists’ equal protection claim does not sound in selective enforcement and does not require a showing that the city acted with illegitimate animus or ill will. The district court thus erred in dismissing the claim. Nonetheless," }, { "docid": "20042893", "title": "", "text": "two claims under the Fourteenth Amendment: that the unlawful entry and search of her premises was a violation of her right to equal protection, and that the search, and its attendant circumstances, constituted an unlawful taking of her property. The defendants move to dismiss on the ground that plaintiff has failed to state a claim for either cause of action. The Court addresses each of these claims in turn and concludes that these claims cannot survive a motion to dismiss. 1. Equal Protection Clause ' Plaintiff brings a claim under the Fourteenth Amendment, alleging that she was deprived of “equal protection under the laws” of the United States. (Am. Compl. ¶¶ 64, 68.) The Young defendants move to dismiss this claim on the ground that plaintiff has not alleged that she was a member of a protected class or group or was treated differently than similarly situated persons. The Court agrees. Plaintiff has failed to allege sufficient facts to support a plausible claim under the Equal Protection Clause against any defendant. The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff does not allege a violation of equal protection due to her membership in a protected group or class, but an individual not alleging invidious discrimination on the basis of membership in some group may nevertheless prevail on an equal protection claim under the “class of one” theory recognized by the Supreme Court in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Under a “class of one” equal protection claim, a plaintiff must allege that (1) “[she] has been intentionally treated differently from others similarly situated” and (2) “there is no rational basis for the difference in treatment.” Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073; see also Giordano v. City of N.Y., 274 F.3d 740, 743 (2d Cir.2001). In order to state an equal protection violation under § 1983, “it is axiomatic that plaintiff must allege" }, { "docid": "9183851", "title": "", "text": "public job, Hill v. Borough of Kutztown, 455 F.3d 225, 234 n.12 (3d Cir. 2006), being actively prevented from winning city contracts in violation of a consent decree with the city, Indep. Enters. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179-80 (3d Cir. 1997), and losing contracts because a plaintiff was termed a \"crook\" by a government employee, Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401-04 (3d Cir. 2000). As a result, the District Court did not err in dismissing the plaintiffs' substantive due process claim. C. The plaintiffs next argue that the District Court erred in dismissing their Equal Protection claims. We do not agree. The Fourteenth Amendment's Equal Protection Clause admonishes that \"[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.\" U.S. Const. amend XIV, § 1. The plaintiffs press a \"class of one\" theory of equal protection jurisprudence. See Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). To state a claim under a class of one theory, \"a plaintiff must allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.\" Hill, 455 F.3d at 239. Rational basis review is a very deferential standard. It is met \"if there is any reasonably conceivable state of facts that could provide a rational basis\" for the differing treatment. United States v. Walker, 473 F.3d 71, 77 (3d Cir. 2007) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) ). We have held that \"the principles of equal protection are satisfied 'so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.' \" Id. (quoting Fitzgerald v. Racing Ass'n" }, { "docid": "8243905", "title": "", "text": "festival: “We are going to have a fire with people playing drums and masturbating. That is for sure, we won’t have that.”).) Accordingly, we conclude that, under the circumstances, due process required no further conference with plaintiffs. Count three of plaintiffs’ complaint is therefore dismissed. C. The Town’s Denial of Plaintiffs’ Request for a Special Use Permit Did Not Violate the Equal Protection Clause Plaintiffs next contend that the actions of the Town, the Planning Board and Town Board member Russell in connection with their application for a special use permit constituted disparate treatment in violation of the Fourteenth Amendment’s Equal Protection Clause. (See Complt. ¶¶ 76-77.) Specifically, plaintiffs claim that other entities within the Town were not charged consultant fees or required to obtain permit approval before advertising for their events. In order to state a “class-of-one” claim, a plaintiff must show that he “has been treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Chestnut Ridge Assocs., Llc v. Vill. of Chestnut Ridge, 194 Fed.Appx. 76, 77 (2d Cir.2006); Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir.2005). In order to succeed on this claim, “the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high.” Neilson, 409 F.3d at 104 (citing Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002)). Indeed, the similarity between the plaintiff and the alleged similarly situated individuals must be “prima face identical.” Neilson, 409 F.3d at 105, 106 (“Where a plaintiff in a class of one equal protection case relies on similarity alone, a more stringent standard must be applied than is applied in a racial discrimination case.”); see also Baum v. Rockland County, 161 Fed.Appx. 62, 65 (2d Cir.2005) (“For such a claim to meet with success, ‘the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high’ .... ”). To this end, the plaintiff must demonstrate" }, { "docid": "2353185", "title": "", "text": "reporters) entry into the polling place to photograph “certain public figures” during the voting process. On the basis of these allegations, Appellant urges that it was and is being discriminated against in violation of the Equal Protection Clause. Appellee does not dispute that § 3060(d) is selectively enforced across the Commonwealth. Indeed, Appellee conceded as much during oral argument. Instead, Ap-pellee argues that the alleged selective enforcement of § 3060(d) cannot sustain an equal protection claim and that any disparate enforcement comes from the structure of the Commonwealth’s electoral process. That is, Appellee asserts that each Board of Elections operates in complete autonomy, and therefore, the decisions of one cannot be compared to the decisions of the others. For the reasons discussed below, we agree with Appellee that the selective enforcement of § 3060(d) does not give rise to a claim under the Equal Protection Clause. Consequently, we hold that the District Court rightfully dismissed Appellant’s claim. A. The “Class of One” Argument The Fourteenth Amendment dictates that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The purpose of this clause is “to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (quoting Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923)). Where a litigant asserts a so-called “class of one” Equal Protection challenge, alleging that the litigant itself, and not a particular group, was the subject of discriminatory treatment under a particular law, we have required the litigant to allege “that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Marcavage v. Nat’l Park Serv., 666 F.3d 856, 860 (3d Cir.2012) (quoting Vill. of Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073). The allegations presented in Appellant’s Complaint" }, { "docid": "18250001", "title": "", "text": "Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (“Our cases have recognized successful equal protection claims ... where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”)); see also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 n. 3 (5th Cir.2007) (“[T]his court has rejected the argument that all ‘class of one’ equal protection claims require a showing of vindictive animus.”). We held explicitly that the homeowners’ equal protection claim did not sound in “selective enforcement” or “personal vindictiveness” and was not subject to the “higher eviden-tiary burden that would normally be required by either claim.” Mikeska, 451 F.3d at 381 n. 4. This precedent compels our holding that the Lindquists’ equal protection claim does not sound in selective enforcement and does not require a showing that the city acted with illegitimate animus or ill will. The district court thus erred in dismissing the claim. Nonetheless, to ultimately prevail on the claim, the Lindquists must carry the heavy burden of “negativ[ing] any reasonably conceivable state of facts that could provide a rational basis” for their differential treatment. Whiting v. Univ. of S. Miss., 451 F.3d 339, 349 (5th Cir. 2006) (quoting Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)) (internal quotation marks omitted). B. Due Process The district court’s dismissal of the Lindquists’ substantive due process claims was proper. The Lindquists complain that the city’s refusal to issue them a license violated their substantive due process rights because other dealers received licenses for properties that did not meet the requirements of the licensing ordinance. As the district court correctly held, this claim is the Lindquists’ equal protection claim recast in substantive due process terms and cannot proceed. See County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“[WJhere a particular Amendment provides an explicit textual source of constitutional protection against a" }, { "docid": "20409075", "title": "", "text": "a policy to discourage businesses from serving Blacks and Latinos, and an obvious consequence of this policy would be that a business that serves Blacks and Latinos would suffer economic harm. Based on these allegations, Plaintiffs have alleged causation sufficient to state a claim for municipal liability. b. Violation of the Equal Protection Clause The College and County Defendants argue that the Plaintiffs failed to state a claim for a violation of the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment directs that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “To prevail on an equal protection claim, a plaintiff must present evidence that s/he has been treated differently from persons who are similarly situated.” Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir.2010) (quoting Williams v. Morton, 343 F.3d 212, 221 (3d Cir.2003)). The Mines’ equal protection claim will not be dismissed. The County Defendants argue that The Mines cannot claim an equal protection violation because it is a corporation without a racial identity, and thus it does not belong to a class protected by the Equal Protection Clause. The Supreme Court has determined, however, that plaintiffs may proceed with equal protection claims under a “class of one” theory, “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Here, The Mines alleges that City and County law enforcement officers intentionally treated it differently than similarly situated nightclubs in the area. Although the County Defendants argue that there was a rational basis for any different treatment, that is an issue of fact not appropriate for the motion-to-dismiss stage. Viewing the facts in the complaint in the light most favorable to the Plaintiffs, they have alleged an equal protection violation, and thus The Mines’ claims under Count I will not be dismissed on the basis of failure to state a claim." }, { "docid": "11361217", "title": "", "text": "relief where the allegedly unconstitutional action was the result of a policy or custom. Id. at 690-91, 98 S.Ct. 2018. Accordingly, this argument of the Defendants will not be considered in the following decision. C. The Fourteenth Amendment Right to Equal Protection In the First Count of his Amended Complaint, Albert alleges that “[t]he acts of the individual [Defendants, under color of law, by virtue of their authority as police supervisors and state officials of the City of Hartford, herein alleged constitute a denial to [Albert] of the equal protection of the laws guaranteed to him by the Fourteenth Amendment to the United States Constitution.” (Dkt.# 47, Am.Compl^ 24.) The Fourteenth Amendment to the United States Constitution provides, “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Supreme Court has held that the Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). A plaintiff claiming a violation of his equal protection rights can proceed according to several theories: A plaintiff could point to a law or policy that expressly classifies persons on the basis of race.... Or, a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner.... A plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus. Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000) (citations omitted; internal quotation marks omitted). Further, the United States Supreme court has held that a plaintiff need not be a member of a traditionally “protected class” in order to allege an equal protection violation. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Instead, a plaintiff may bring claims as “a class of one, where the plaintiff alleges that she has been intentionally treated differently from others similarly" }, { "docid": "2353186", "title": "", "text": "person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The purpose of this clause is “to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (quoting Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923)). Where a litigant asserts a so-called “class of one” Equal Protection challenge, alleging that the litigant itself, and not a particular group, was the subject of discriminatory treatment under a particular law, we have required the litigant to allege “that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Marcavage v. Nat’l Park Serv., 666 F.3d 856, 860 (3d Cir.2012) (quoting Vill. of Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073). The allegations presented in Appellant’s Complaint do not demonstrate that Appellant was “intentionally treated differently” from other newspapers in Pennsylvania. In fact, the Complaint fails to present a single example where another newspaper sought and obtained access to a polling place in a location where Appellant could not. As the District Court recognized, “[t]he facts alleged by [Appellant] suggest only that employees of the Post-Gazette unsuccessfully sought to enter polling places located in counties where § 3060(d) is enforced, and that employees of other newspapers were allowed to enter polling places in counties where § 3060(d) is not enforced.” PG Publ’g Co., — F.Supp.2d at -, 2012 WL 4796017, at *29. Still, we must delve deeper, for Appellant urges us that it has alleged a scheme of selective enforcement sufficient to implicate the Equal Protection Clause. B. The “Selective Enforcement” Argument The Equal Protection Clause prohibits the “selective enforcement” of a law based on an unjustifiable standard. Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir.2006); see also United States v. Batchelder, 442 U.S. 114, 125 n. 9, 99 S.Ct." }, { "docid": "116865", "title": "", "text": "No. 112.) The Fourteenth Amendment prohibits state action which “den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. For the following reasons, the Jury’s verdict cannot stand as a matter of law. The Equal Protection Clause of the Fourteenth Amendment protects a person or a corporation against intentional and arbitrary discrimination in the enforcement of a law, whether occasioned by express terms of a statute or by improper execution by government officials. Kaplan v. Chertoff, 481 F.Supp.2d 370, 392 (E.D.Pa.2007). The Equal Protection Clause “ ‘does not forbid all classifications’ but ‘simply keeps governmental decision-makers from treating differently persons who are in all relevant respects alike.’ ” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir.2011) (Fisher, J., concurring and dissenting). In this case, the type of equal protection claim asserted by MFS is known as a “class-of-one” equal protection claim. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). To establish a claim for a violation of the Equal Protection Clause based on a class-of-one theory, a plaintiff must demonstrate that: 1) it “has been intentionally treated differently from others similarly situated,” and 2) “there is no rational basis for the difference in treatment.” Id. These challenges fail when “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); see also Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008) (explaining class-of-one theory). i. Similarly Situated and Intentional Treatment The first step in an equal protection analysis is to ascertain whether the plaintiffs were treated differently than similarly situated entities. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 394 (3d Cir.2010). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183," } ]

[ { "docid": "23328108", "title": "", "text": "the district court erred by admitting lay opinion testimony from FBI agents concerning their understanding of what Simas meant to convey by his vague and ambiguous statements during the course of the alleged crimes. Simas argues this testimony was inadmissible under Federal Rule of Evidence 701 and, in the alternative, its unfair prejudicial effect outweighed any probative value. See Fed.R.Evid. 403. The admission of lay opinion testimony is “within the broad discretion of the trial judge [and] not to be disturbed unless it is manifestly erroneous.” United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Except for one instance, Simas’ trial counsel failed to object to the testimony which his appellate counsel now challenges. Therefore, except for the single objection made at the time of trial, we review for plain error. United States v. Smith, 790 F.2d 789, 793 (9th Cir.1986). For lay opinion testimony to be admissible, the opinion must be (1) “rationally based on the perception of the witness” and (2) must be helpful to the jury in acquiring a “clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. Each FBI agent testified about statements made to that agent. This was sufficient to satisfy the first requirement of Rule 701. See 3 D. Louisell, C. Mueller, Federal Evidence § 376, at 618 (1979) (stat ing first requirement is simply a restatement of the personal knowledge requirement necessary for all lay witness testimony). As to the second requirement, a lay witness’ opinion concerning the witness’ understanding of the declarant’s statements or conduct may be helpful to the jury. See Burnette, 698 F.2d at 1051 (officer’s opinion that defendant was removing license plates from car), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985) (witness testifies to understanding of defendant’s ambiguous references and unfinished sentences), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In addition, we previously have allowed law enforcement officers" } ]

[ { "docid": "22981211", "title": "", "text": "is reduced. Turning to the case at hand, Freeman failed to ask the district court to instruct the jury regarding Shin’s dual role and did not enter an objection raising that concern, such as an objection based on Fed.R.Evid. 403. See Dukagjini, 326 F.3d at 54 (noting that when an expert witness provides lay testimony it implicates the concern under Rule 403 of juror confusion). We therefore review Shin’s dual role testimony for plain error. Because the distinction between lay and expert testimony in this context is a fine one, we do not fault the district court for failing to intervene sua sponte. ' Thus there was no plain error. We also note that the opportunity does not lie solely with the district court to clarify in the eyes of the jury the demarcation between lay and expert testimony offered by the same witness. That distinction can also be revealed through direct,or cross examination. Freeman did enter running objections to all of Shin’s testimony based on hearsay, speculation, and lack of foundation. Though Freeman did not specifically raise our concerns regarding Shin’s testifying as a lay witness based on improper grounds, his objections did raise the essence of these concerns and we therefore do not review them for plain error but instead apply the ordinary abuse of discretion standard. See Decoud, 456 F.3d at 1010. The record reveals that the majority of Shin’s lay testimony consisted of his interpretations of ambiguous conversations based upon his direct knowledge of the investigation. Although, unlike the witnesses in Simas and De Peri, Shin was not a participant in the conversations he interpreted, his understanding of ambiguous phrases was based on his direct perception of several hours of intercepted conversations-—-in some instances coupled with direct observation of Mitchell and Brown— and other facts he learned during the investigation. See Simas, 937 F.2d at 464-65 (noting that the perception of the witness requirement is “simply a restatement of the personal knowledge requirement for all lay testimony”); see also United States v. Beck, 418 F.3d 1008, 1015 (9th Cir.2005) (holding that a lay witness’s testimony is" }, { "docid": "8457217", "title": "", "text": "and all the closers who have worked in these rooms that you’ve spoken to, have you ever heard of any investor making any money on any of these investments?” Agler responded, “[n]o, I have not.” Baker and Nelson argue that Agler’s testimony impermissibly opined on what the telemarketers who solicited and closed investments, including themselves, knew about what they were selling and about what the investors were doing and thinking. They argue that to the extent Agler expressed a lay opinion, he relied on speculation and hearsay, and to the extent he expressed an expert opinion based on specialized knowledge gained from working in boiler rooms, the government failed to give the notice required under Rule 702 of the Federal Rules of Evidence and Rule 16 of the Federal Rules of Criminal Procedure. Agler had extensive personal experience working as a telemarketer in boiler rooms soliciting and closing investments, including in Cinamour films. But his testimony that investors did not understand the risks, that all telemarketers knew of and took advantage of this ignorance, and that telemarketers knew that investors never made any money, was largely based on statements he heard from unidentified telemarketers and investors, well beyond his own personal experience with investors. Our cases make clear that Rule 701 prohibits opinions based on such a foundation. See, e.g., United States v. Freeman, 498 F.3d 893, 904 (9th Cir.2007) (“If Shin relied upon or conveyed hearsay evidence when testifying as a lay witness or if Shin based his lay testimony on matters not within his personal knowledge, he exceeded the bounds of properly admissible testimony.”). Agler’s testimony is different from the lay testimony that we have permitted law-enforcement officers to give. See, e.g., Gadson, 763 F.3d at 1208; United States v. Simas, 937 F.2d 459 (9th Cir.1991). In those cases, the officers did not base their lay opinions on hearsay statements made by unidentified individuals. See Simas, 937 F.2d at 464 (no abuse of discretion in allowing FBI agents to interpret the defendant’s own “vague and ... incomprehensible” statements). In Gadson, we held that the district court did not" }, { "docid": "22981209", "title": "", "text": "See also United States v. de Soto, 885 F.2d 354, 361 (7th Cir.1989) (when an expert testifies as to the meaning of seemingly innocuous activities, district court ought be careful to ensure that “the expert ... not base his opinion on mere speculation”). District courts have the continuing responsibility of acting as the vigilant gatekeepers of expert testimony to ensure that it is reliable. See Kumho, 526 U.S. at 147-149, 119 S.Ct. 1167. The fact that Shin possessed specialized knowledge of the particular language of drug traffickers did not give him carte blanche to testify as to the meaning of other words in recorded telephone calls without regard to reliability or relevance. Third, as noted, the blurred distinction between Shin’s expert and lay testimony may have allowed him to rely upon and convey inadmissible hearsay evidence. Once Shin stopped testifying as an expert and began providing lay testimony, he was no longer “allowed ... to testify based on hearsay information, and to couch his observations as generalized ‘opinions’ rather than as firsthand knowledge.” Jinro America, 266 F.3d at 1004; Cree v. Flores, 157 F.3d 762, 773 (9th Cir.1998) (noting that expert testimony is “not subject to the strictures of Federal Rules of Evidence 602 and 803”). If Shin relied upon or conveyed hearsay evidence when testifying as a lay witness or if Shin based his lay testimony on matters not within his personal knowledge, he exceeded the bounds of properly admissible testimony. We agree, however, that the use of case agents as both expert and lay witnesses is not so inherently suspect that it should be categorically prohibited. See Dukagjini, 326 F.3d at 56. Testimony of this kind may save time and expense, and will not necessarily result in juror confusion, provided that the district court engages in vigilant gatekeeping. We think that it is sufficient to emphasize the necessity of making clear to the jury what the attendant circumstances are in allowing a government case agent to testify as an expert. If jurors are aware of the witness’s dual roles, the risk of error in these types of trials" }, { "docid": "8457220", "title": "", "text": "Rule 701. During closing argument, the prosecutor urged the jury to consider the statements Agler testified he heard to be truthful and encouraged the jury to rely on them: Ladies and gentlemen, do you remember when Allen Agler testified and he told you that he committed fraud in this case and he pled guilty, and he stated that in all his experience as a telemarketer in boiler rooms raising money for movies, and in all his discussions with other people who were boiler room closers, not one single investor that he knew of in a movie investment from cold call telemarketing ever made a cent, not one? Remember, all the closers knew that no investor makes money from an independent movie where the money is raised by cold call telemarketing. Agler testified that all victims ignored the written materials — including any risk-disclosure statements in the private placement memoranda — and instead relied exclusively on what the telemarketers orally promised in their sales pitches, and that all telemarketers knew and relied on victims following this pattern. Agler based his testimony on taking as true the contents of statements made by unidentified telemarketers and victims. The record is inadequate to allow us to conclude that a hearsay exception or exclusion applies. The government argues that any error in admitting Agler’s testimony under Rule 701 was harmless because he would have qualified as an expert under Rule 702. The government cites United States v. Mendoza, 244 F.3d 1037 (9th Cir.2001), and United States v. Figueroa-Lopez, 125 F.3d 1241, 1246-47 (9th Cir.1997). Both cases are distinguishable. In Mendoza, the defendant was tried and convicted for endangering the safety of an aircraft in flight after he called in a bomb threat to delay a flight so that his girlfriend would not miss it. See 244 F.3d at 1042-43. The government had originally given notice that the flight captain would testify but instead presented lay testimony from the first officer to show that the bomb threat endangered the aircraft’s safety. See id. at 1043, 1047. On appeal, the defendant argued that the first officer was" }, { "docid": "22981210", "title": "", "text": "266 F.3d at 1004; Cree v. Flores, 157 F.3d 762, 773 (9th Cir.1998) (noting that expert testimony is “not subject to the strictures of Federal Rules of Evidence 602 and 803”). If Shin relied upon or conveyed hearsay evidence when testifying as a lay witness or if Shin based his lay testimony on matters not within his personal knowledge, he exceeded the bounds of properly admissible testimony. We agree, however, that the use of case agents as both expert and lay witnesses is not so inherently suspect that it should be categorically prohibited. See Dukagjini, 326 F.3d at 56. Testimony of this kind may save time and expense, and will not necessarily result in juror confusion, provided that the district court engages in vigilant gatekeeping. We think that it is sufficient to emphasize the necessity of making clear to the jury what the attendant circumstances are in allowing a government case agent to testify as an expert. If jurors are aware of the witness’s dual roles, the risk of error in these types of trials is reduced. Turning to the case at hand, Freeman failed to ask the district court to instruct the jury regarding Shin’s dual role and did not enter an objection raising that concern, such as an objection based on Fed.R.Evid. 403. See Dukagjini, 326 F.3d at 54 (noting that when an expert witness provides lay testimony it implicates the concern under Rule 403 of juror confusion). We therefore review Shin’s dual role testimony for plain error. Because the distinction between lay and expert testimony in this context is a fine one, we do not fault the district court for failing to intervene sua sponte. ' Thus there was no plain error. We also note that the opportunity does not lie solely with the district court to clarify in the eyes of the jury the demarcation between lay and expert testimony offered by the same witness. That distinction can also be revealed through direct,or cross examination. Freeman did enter running objections to all of Shin’s testimony based on hearsay, speculation, and lack of foundation. Though Freeman did" }, { "docid": "8457215", "title": "", "text": "of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.” Fed.R.Evid. 701. “Rule 701(a) contains a personal knowledge requirement.” United States v. Lopez, 762 F.3d 852, 864 (9th Cir.2014). “In presenting lay opinions, the personal knowledge requirement may be met if the witness can demonstrate firsthand knowledge or observation.” Id. “A lay witness’s opinion testimony necessarily draws on the witness’s own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury.” Gadson, 763 F.3d at 1208. But a lay opinion witness “may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements.” United States v. Vera, 770 F.3d 1232, 1242 (9th Cir.2014). Agler testified about his experience in working in telemarketing boiler rooms selling investments. He testified that: • “[everybody that I’ve ever worked with will always stretch the truth and make out — outright lies especially in certain techniques”; • “[i]n my experience, the vast majority of people who invest do not read the private placement memorandum or if they do they read it on a limited basis, and they have no idea what it says”; • this was “absolutely” a “well-known fact” in the boiler rooms that he worked in; and • investors relied on what telemarketers told them. On cross-examination, Agler testified that “most investors never gave me an indication that they read the private placement memoranda” and he never brought “the subject up” when “he talked to them.” When pressed on the basis for this opinion, Agler testified that he relied on his experience and the assumption that only those investors who asked a lot of questions about a memorandum had read it. On redirect, the government asked whether the fact that “investors did not read” private placement memoranda was “something that was openly discussed among closers that you worked with?” Agler responded, “sure.” When asked if “it was a topic of discussion that investors don’t read the [private placement memoranda],” he responded, “absolutely.” At the end of Agler’s testimony, the prosecutor asked whether, “in all your own personal experience" }, { "docid": "8457218", "title": "", "text": "that telemarketers knew that investors never made any money, was largely based on statements he heard from unidentified telemarketers and investors, well beyond his own personal experience with investors. Our cases make clear that Rule 701 prohibits opinions based on such a foundation. See, e.g., United States v. Freeman, 498 F.3d 893, 904 (9th Cir.2007) (“If Shin relied upon or conveyed hearsay evidence when testifying as a lay witness or if Shin based his lay testimony on matters not within his personal knowledge, he exceeded the bounds of properly admissible testimony.”). Agler’s testimony is different from the lay testimony that we have permitted law-enforcement officers to give. See, e.g., Gadson, 763 F.3d at 1208; United States v. Simas, 937 F.2d 459 (9th Cir.1991). In those cases, the officers did not base their lay opinions on hearsay statements made by unidentified individuals. See Simas, 937 F.2d at 464 (no abuse of discretion in allowing FBI agents to interpret the defendant’s own “vague and ... incomprehensible” statements). In Gadson, we held that the district court did not abuse its discretion in admitting lay opinion testimony that the defendant’s coconspirator “made these admissions to us [the police]” because the officer “did not testify as to the nature of ‘these admissions,’ repeat any assertion made by [the coconspirator], or suggest that the jury should consider any admission made by [the coconspirator] to be truthful.” 763 F.3d at 1211-12. We emphasized that “an officer’s interpretation of intercepted phone calls may meet Rule 701’s ‘perception’ requirement when it is an interpretation ‘of ambiguous conversations based upon [the officer’s] direct knowledge of the investigation.’ ” Id. at 1207 (quoting Freeman, 498 F.3d at 904-05). Here, by contrast, Agler’s opinions that all telemarketers knew that investors rarely — if ever — read any private placement memoranda and never received a return on their investments were based primarily on the statements of unidentified telemarketers and of unidentified investor-victims. And, unlike the record we considered in Godson, Agler testified about the nature of statements by other, unidentified telemarketers and investors. Agler’s testimony was not admissible as lay opinion testimony under" }, { "docid": "22981204", "title": "", "text": "113 S.Ct. 2786; Kumho Tire, 526 U.S. at 147-48, 119 S.Ct. 1167. A lay witness may provide opinion testimony regarding the meaning of vague or ambiguous statements. See United States v. Si-mas, 937 F.2d 459, 464-65 (9th Cir.1991); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985). But, unlike expert testimony, lay opinion must be “rationally based on the perception of the witness.” Fed.R.Evid. 701. It must also be helpful to the jury in acquiring a “clear understanding of the witness’s testimony or the determination of a fact in issue.” Id. We have previously held these requirements were met when a law enforcement investigator testified regarding his understanding of the meaning of a declarant’s vague or ambiguous statements. See Simas, 937 F.2d at 465 (“[Appellant’s] statements to the FBI agents were vague and, at times, seemingly incomprehensible. The listener’s understanding of the words and innuendo was helpful to the jury in determining what [the appellant] meant to convey.”); see also De Peri, 778 F.2d at 977-78 (holding that it was permissible for a lay witness to testify to his understanding of defendant’s ambiguous references and unfinished sentences). Freeman argues that it was error for the district court to allow Shin to testify both as an expert witness concerning coded drug terms and as a lay witness. The dangers highlighted by Freeman were analyzed in United States v. Dukagjini, 326 F.3d 45 (2d Cir.2003). In that case an agent with the DEA testified as an expert witness in the area of decoding drug jargon and as a lay witness giving general explanations of conversations between the targets of the investigation. See id. at 49-51. The appellants argued that the government witness’s “dual roles as case agent and expert witness allowed him to serve as a summary witness, improperly testifying as an expert about the general meaning of conversations and the facts of the case.” Id. at 53. Dukagjini identified several difficulties that arise when a case agent goes beyond interpreting code words as an expert and testifies as to the defendant’s conduct based upon the agent’s knowledge of the" }, { "docid": "22981212", "title": "", "text": "not specifically raise our concerns regarding Shin’s testifying as a lay witness based on improper grounds, his objections did raise the essence of these concerns and we therefore do not review them for plain error but instead apply the ordinary abuse of discretion standard. See Decoud, 456 F.3d at 1010. The record reveals that the majority of Shin’s lay testimony consisted of his interpretations of ambiguous conversations based upon his direct knowledge of the investigation. Although, unlike the witnesses in Simas and De Peri, Shin was not a participant in the conversations he interpreted, his understanding of ambiguous phrases was based on his direct perception of several hours of intercepted conversations-—-in some instances coupled with direct observation of Mitchell and Brown— and other facts he learned during the investigation. See Simas, 937 F.2d at 464-65 (noting that the perception of the witness requirement is “simply a restatement of the personal knowledge requirement for all lay testimony”); see also United States v. Beck, 418 F.3d 1008, 1015 (9th Cir.2005) (holding that a lay witness’s testimony is rationally based on the witness’s perceptions if it is “based upon personal observation and recollection of concrete facts”). Such testimony also proved helpful to the jury in determining what Freeman, Mitchell, and Brown were communicating during the recorded telephone calls. Although Shin’s interpretation of ambiguous statements was permissible under Fed.R.Evid. 701, “the interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of both Fed.R.Evid. 701 and Fed.R.Evid. 702.” United States v. Dicker, 853 F.2d 1103, 1109 (3d Cir.1988) (emphasis in original); see also Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986) (noting that Rule 702 “makes inadmissible expert testimony as to a matter which obviously is within the common knowledge of jurors because such testimony, almost by definition, can be of no assistance”). It is necessary that a lay witness’s “opinions are based upon ... direct perception of the event, are hot speculative, and are helpful to the determination” of factual issues before the jury. De Peri, 778 F.2d at 977. Some of Shin’s testimony, however," }, { "docid": "23688573", "title": "", "text": "an ambiguous manner and because of the agents’ vast experience with drug code language.”); United States v. Gadson, 763 F.3d 1189, 1210 (9th Cir.2014) (“Because a jury may become confused by vague pronouns such as ‘who,’ ‘him,’ and ‘that,’ [an officer’s] testimony would provide helpful context” and district court did not plainly err by admitting it). Similarly, in United States v. Grinage, 390 F.3d 746, 748-49 (2d Cir.2004), a DEA agent testified that several intercepted phone calls using the phrases “I need something bad, bad, bad,” and “I need about nearly four,” were drug-related “based on [his] knowledge of the entire investigation” and “because of -his knowledge of [the defendant’s] activities.” The court held that this testimony was improp er as lay opinion because it “usurped the function of the jury to decide what to infer from the content of the calls.” Id. at 750. The court warned that under this approach “there would be no need for the trial jury to review personally any evidence at all. The jurors could be ‘helped’ by a summary witness for the Government, who could not only tell them what was in the evidence but tell them what inferences to draw from it. That is not the point of lay opinion evidence.” Id.; see also United States v. Hampton, 718 F.3d 978, 986 (D.C.Cir.2013) (Brown, J., concurring) (“A lay opinion witness may tell jurors ‘what was in the evidence,’ but not ‘tell them what inferences to draw from it,’ for that responsibility is up to the jury and the jury alone.”) (citing Grinage, 390 F.3d at 750). Such a usurpation of the jury’s function by a government agent is especially concerning because “[a]n agent presented to a jury with an aura of expertise and authority increases the risk that the jury will be swayed improperly by the agent’s testimony, rather than rely on its own interpretation of the evidence.” Freeman, 730 F.3d at 599; see also Grinage, 390 F.3d at 751 (same). But see Gadson, 763 F.3d at 1209 (“Contrary to the rationale of Hampton and Grinage, ‘the application of Rule 701 should" }, { "docid": "8457214", "title": "", "text": "763 F.3d 1189, 1209 (9th Cir.2014) (quoting Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051 (9th Cir.2008)). The government contends that plain-error review applies because Baker objected on other grounds, not raised on appeal, before moving to strike Agler’s testimony as unnoticed expert testimony, and Nelson did not specifically adopt Baker’s objections. But Baker’s attorney repeatedly objected to Agler’s testimony about whether investors ever read the private placement memoran-da they were sent. The objections were that Agler was giving “an expert opinion without foundation,” as well as hearsay. “[T]he matter was sufficiently brought to the attention of the district court” through Baker’s objections for us to review for abuse of discretion. Gadson, 763 F.3d at 1201 n. 3 (quoting United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir.2012)). Under Federal Rule of Evidence 701, a lay witness may testify “in the form of an opinion” if it is “(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.” Fed.R.Evid. 701. “Rule 701(a) contains a personal knowledge requirement.” United States v. Lopez, 762 F.3d 852, 864 (9th Cir.2014). “In presenting lay opinions, the personal knowledge requirement may be met if the witness can demonstrate firsthand knowledge or observation.” Id. “A lay witness’s opinion testimony necessarily draws on the witness’s own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury.” Gadson, 763 F.3d at 1208. But a lay opinion witness “may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements.” United States v. Vera, 770 F.3d 1232, 1242 (9th Cir.2014). Agler testified about his experience in working in telemarketing boiler rooms selling investments. He testified that: • “[everybody that I’ve ever worked with will always stretch the truth and make out — outright lies especially in certain techniques”; • “[i]n my experience, the vast majority of people who invest do not read the private placement memorandum or" }, { "docid": "23688572", "title": "", "text": "reach,” and that “[a] witness, lay or expert, may not form conclusions for a jury that they are competent to reach on their own.” Id. at 597. “[A] case agent testifying as a lay witness may not explain to the jury what inferences to draw from recorded conversations involving ordinary language.” Id. at 598. The court held that the agent’s testimony was improper because it “effectively spoon-fed his interpretations of the phone calls and the government’s theory of the case to the jury, interpreting even ordinary English language.” Id. at 597 (citing United States v. Peoples, 250 F.3d 630, 640 (8th Cir.2001) (finding that the agent’s “testimony was not limited to coded, oblique language, but included plain English words and phrases” and was therefore inadmissible under Rule 701)). But see United States v. Ceballos, 302 F.3d 679, 688 (7th Cir.2002) (“[W]e hold that the district court did not abuse its discretion in permitting [special agents] to offer expert testimony on the meaning of pronouns such as ‘it’ and ‘them’ because the pronouns were used in an ambiguous manner and because of the agents’ vast experience with drug code language.”); United States v. Gadson, 763 F.3d 1189, 1210 (9th Cir.2014) (“Because a jury may become confused by vague pronouns such as ‘who,’ ‘him,’ and ‘that,’ [an officer’s] testimony would provide helpful context” and district court did not plainly err by admitting it). Similarly, in United States v. Grinage, 390 F.3d 746, 748-49 (2d Cir.2004), a DEA agent testified that several intercepted phone calls using the phrases “I need something bad, bad, bad,” and “I need about nearly four,” were drug-related “based on [his] knowledge of the entire investigation” and “because of -his knowledge of [the defendant’s] activities.” The court held that this testimony was improp er as lay opinion because it “usurped the function of the jury to decide what to infer from the content of the calls.” Id. at 750. The court warned that under this approach “there would be no need for the trial jury to review personally any evidence at all. The jurors could be ‘helped’ by a" }, { "docid": "22981203", "title": "", "text": "of coded terms at all. For example, in one telephone conversation between Brown and Mitchell, Shin interpreted “long route” to refer to a drug transaction. In several conversations, Shin interpreted ambiguous phrases such as “that,” “they,” and “one of them,” to refer to either money or cocaine. In another conversation, Shin interpreted Brown’s statement, “Man, it’s done already” to mean “he’s given the cocaine to Kevin Freeman and that he’s received his money for it.” In these and other instances, Shin did nothing more than offer one possible framework for understanding the conversation. When offering this type of testimony, Shin usually explained his reasoning. However, in these instances Shin ceased to apply his specialized knowledge of drug jargon and the drug trade and began to interpret ambiguous statements based on his general knowledge of the investigation. He was therefore no longer testifying as an expert but rather as a lay witness. See Fed.R.Evid. 702 (stating that an expert opinion is based on “scientific, technical or other specialized knowledge”); see also Daubert, 509 U.S. at 589-91, 113 S.Ct. 2786; Kumho Tire, 526 U.S. at 147-48, 119 S.Ct. 1167. A lay witness may provide opinion testimony regarding the meaning of vague or ambiguous statements. See United States v. Si-mas, 937 F.2d 459, 464-65 (9th Cir.1991); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985). But, unlike expert testimony, lay opinion must be “rationally based on the perception of the witness.” Fed.R.Evid. 701. It must also be helpful to the jury in acquiring a “clear understanding of the witness’s testimony or the determination of a fact in issue.” Id. We have previously held these requirements were met when a law enforcement investigator testified regarding his understanding of the meaning of a declarant’s vague or ambiguous statements. See Simas, 937 F.2d at 465 (“[Appellant’s] statements to the FBI agents were vague and, at times, seemingly incomprehensible. The listener’s understanding of the words and innuendo was helpful to the jury in determining what [the appellant] meant to convey.”); see also De Peri, 778 F.2d at 977-78 (holding that it was permissible for a" }, { "docid": "8457219", "title": "", "text": "abuse its discretion in admitting lay opinion testimony that the defendant’s coconspirator “made these admissions to us [the police]” because the officer “did not testify as to the nature of ‘these admissions,’ repeat any assertion made by [the coconspirator], or suggest that the jury should consider any admission made by [the coconspirator] to be truthful.” 763 F.3d at 1211-12. We emphasized that “an officer’s interpretation of intercepted phone calls may meet Rule 701’s ‘perception’ requirement when it is an interpretation ‘of ambiguous conversations based upon [the officer’s] direct knowledge of the investigation.’ ” Id. at 1207 (quoting Freeman, 498 F.3d at 904-05). Here, by contrast, Agler’s opinions that all telemarketers knew that investors rarely — if ever — read any private placement memoranda and never received a return on their investments were based primarily on the statements of unidentified telemarketers and of unidentified investor-victims. And, unlike the record we considered in Godson, Agler testified about the nature of statements by other, unidentified telemarketers and investors. Agler’s testimony was not admissible as lay opinion testimony under Rule 701. During closing argument, the prosecutor urged the jury to consider the statements Agler testified he heard to be truthful and encouraged the jury to rely on them: Ladies and gentlemen, do you remember when Allen Agler testified and he told you that he committed fraud in this case and he pled guilty, and he stated that in all his experience as a telemarketer in boiler rooms raising money for movies, and in all his discussions with other people who were boiler room closers, not one single investor that he knew of in a movie investment from cold call telemarketing ever made a cent, not one? Remember, all the closers knew that no investor makes money from an independent movie where the money is raised by cold call telemarketing. Agler testified that all victims ignored the written materials — including any risk-disclosure statements in the private placement memoranda — and instead relied exclusively on what the telemarketers orally promised in their sales pitches, and that all telemarketers knew and relied on victims following this" }, { "docid": "8457221", "title": "", "text": "pattern. Agler based his testimony on taking as true the contents of statements made by unidentified telemarketers and victims. The record is inadequate to allow us to conclude that a hearsay exception or exclusion applies. The government argues that any error in admitting Agler’s testimony under Rule 701 was harmless because he would have qualified as an expert under Rule 702. The government cites United States v. Mendoza, 244 F.3d 1037 (9th Cir.2001), and United States v. Figueroa-Lopez, 125 F.3d 1241, 1246-47 (9th Cir.1997). Both cases are distinguishable. In Mendoza, the defendant was tried and convicted for endangering the safety of an aircraft in flight after he called in a bomb threat to delay a flight so that his girlfriend would not miss it. See 244 F.3d at 1042-43. The government had originally given notice that the flight captain would testify but instead presented lay testimony from the first officer to show that the bomb threat endangered the aircraft’s safety. See id. at 1043, 1047. On appeal, the defendant argued that the first officer was an undisclosed expert witness and that admitting his testimony made the trial unfair. See id. at 1046. We found that “the government had given notice that the captain of the flight would testify to emergency procedures, what occurred on [the flight], and endangerment,” and “[f]or the purposes of a fair trial it was immaterial that the captain was not available, and that an equally qualified witness who had experienced the same factual circumstances, was substituted.” Id. Unlike Nelson, the defendant in Mendoza had been given notice of the challenged testimony and its basis before trial and could prepare. In Figueroa-Lopez, a special agent with the Drug Enforcement Administration testified about “the means utilized by drug traffickers to detect certain things, ... and their patterns and other activities.” Figueroa-Lopez, 125 F.3d at 1247. The officer did not rely on hearsay statements made by unidentified traffickers or others, taken as trae. The record contained extensive evidence of the officer’s training and experience in drag traffickers’ methods, a common subject of expert opinion. Id. The record in this" }, { "docid": "20511091", "title": "", "text": "at 904; see also United States v. Martinez, 657 F.3d 811, 817 (9th Cir.2011) (approving admission of hybrid testimony when “the court instructed the jury three times on the difference between percipient and expert testimony”); United States v. Anchrum, 590 F.3d 795, 803-04 (9th Cir.2009) (holding that the district court “avoided blurring the distinction between [the case agent’s] distinct role as a lay witness and his role as an expert witness” when it “clearly separated [the agent’s] testimony into a first ‘phase’ consisting of his percipient observations, and a second ‘phase’ consisting of his credentials in the field of drug trafficking and expert testimony regarding the modus operandi of drug traffickers”). Direct and cross-examination provide additional opportunities “to clarify in the eyes of the jury the demarcation between lay and expert testimony offered by the same witness.” Freeman, 498 F.3d at 904; see also Martinez, 657 F.3d at 817 (noting that “[t]he government was nearly always exact in specifying when it was asking for [the agent’s] testimony as an expert” in affirming admission of the agent’s hybrid testimony). Finally, a law enforcement officer involved in the investigation may offer lay opinions about the meaning of intercepted phone calls, but those opinions are subject to the requirements of Federal Rule of Evidence 701. See Freeman, 498 F.3d at 904^05. Rule 701 requires lay opinion testimony to be “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Accordingly, an officer may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements. See Freeman, 498 F.3d at 905. But he may interpret “ambiguous conversations based upon his direct knowledge of the investigation,” including his “direct perception of several hours of intercepted conversations ... and other facts he learned during the investigation.” Id. at 904-05; see also United States v. Godson, 763 F.3d 1189 (9th Cir.2014). In sum, law enforcement officers may offer lay and expert opinions about the meaning of" }, { "docid": "20511092", "title": "", "text": "agent’s hybrid testimony). Finally, a law enforcement officer involved in the investigation may offer lay opinions about the meaning of intercepted phone calls, but those opinions are subject to the requirements of Federal Rule of Evidence 701. See Freeman, 498 F.3d at 904^05. Rule 701 requires lay opinion testimony to be “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Accordingly, an officer may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements. See Freeman, 498 F.3d at 905. But he may interpret “ambiguous conversations based upon his direct knowledge of the investigation,” including his “direct perception of several hours of intercepted conversations ... and other facts he learned during the investigation.” Id. at 904-05; see also United States v. Godson, 763 F.3d 1189 (9th Cir.2014). In sum, law enforcement officers may offer lay and expert opinions about the meaning of intercepted phone calls, but the foundation laid for those opinions must satisfy Rules 701 and 702, respectively. Further, if a single officer offers both lay and expert testimony, the jury must be informed of the fact and significance of his dual roles. B. Analysis Applying these principles to this case, we hold it was plain error not to instruct the jury on how to appropriately evaluate Lavis’ opinions and to fail to require an adequately specific foundation for those opinions. Together, these errors undermine our overall confidence in the jury verdict in some respects. If an appropriate foundation had been laid, the jury would at least have had the information it needed to evaluate Lavis’ opinions. If the jury had been instructed on how to evaluate Lavis’ opinions, it would at least have known the rules governing how much weight to give those opinions. The absence of both an adequately laid foundation and an appropriate instruction, however, substantially heightened the “risk that the jury [would] defer to the officer’s superior knowledge of the case and" }, { "docid": "8457222", "title": "", "text": "an undisclosed expert witness and that admitting his testimony made the trial unfair. See id. at 1046. We found that “the government had given notice that the captain of the flight would testify to emergency procedures, what occurred on [the flight], and endangerment,” and “[f]or the purposes of a fair trial it was immaterial that the captain was not available, and that an equally qualified witness who had experienced the same factual circumstances, was substituted.” Id. Unlike Nelson, the defendant in Mendoza had been given notice of the challenged testimony and its basis before trial and could prepare. In Figueroa-Lopez, a special agent with the Drug Enforcement Administration testified about “the means utilized by drug traffickers to detect certain things, ... and their patterns and other activities.” Figueroa-Lopez, 125 F.3d at 1247. The officer did not rely on hearsay statements made by unidentified traffickers or others, taken as trae. The record contained extensive evidence of the officer’s training and experience in drag traffickers’ methods, a common subject of expert opinion. Id. The record in this case, by contrast, provides less support to find Agler qualified as an expert or that his opinions were reliable, and what telemarketers “know” is not a common subject for Rule 702 expert testimony. The record does not present a basis to excuse the failure to provide the defense timely notice of Agler’s Rule 702 expert testimony by holding it admissible as lay opinion testimony under Rule 701. We consider below whether this error and others were harmless in light of the extensive evidence that was properly admitted. c. The Rule 404(b) Evidence Nelson testified that he believed Cinam-our was a legitimate company, that he never knowingly lied to an investor, and that he would not have worked at Cinam-our had he known about the false representations made by others working there. On cross-examination, the government introduced evidence that shortly after law-enforcement agents raided Cinamour, Nelson went to work in a movie telemarketing boiler room for Big Gunn Productions. During his employment there, Nelson received a check from Slanaker with the notation for “leads.” The government" }, { "docid": "8457213", "title": "", "text": "in allowing Allen Bruce Agler, who had worked in several movie telemarketing boiler rooms (including for Cinamour during the fundraising for From Mexico With Love between 2005 and 2007), to testify about boiler-room management, activity, and strategy. Agler’s testimony included his opinions about the information and knowledge telemarketers have when they cold-call potential investors and when they close a deal. Agler’s testimony was not admissible under Rule 702 of the Federal Rules of Evidence because the government did not give the defendants the notice required under Rule 16 of the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 16(a)(1)(G) (requiring, at the defendant’s request, pretrial disclosure of expert witnesses and a written summary of their testimony). Baker and Nelson argue that this limit could not be avoided by admitting Agler’s testimony as lay opinion testimony under Rule 701. “The admissibility of lay opinion testimony under Rule 701 is committed to the sound discretion of the trial judge and his decision will be overturned only if it constitutes a clear abuse of discretion.” United States v. Gadson, 763 F.3d 1189, 1209 (9th Cir.2014) (quoting Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051 (9th Cir.2008)). The government contends that plain-error review applies because Baker objected on other grounds, not raised on appeal, before moving to strike Agler’s testimony as unnoticed expert testimony, and Nelson did not specifically adopt Baker’s objections. But Baker’s attorney repeatedly objected to Agler’s testimony about whether investors ever read the private placement memoran-da they were sent. The objections were that Agler was giving “an expert opinion without foundation,” as well as hearsay. “[T]he matter was sufficiently brought to the attention of the district court” through Baker’s objections for us to review for abuse of discretion. Gadson, 763 F.3d at 1201 n. 3 (quoting United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir.2012)). Under Federal Rule of Evidence 701, a lay witness may testify “in the form of an opinion” if it is “(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination" }, { "docid": "8457212", "title": "", "text": "investments. The jury heard recorded conversations of Baker telling the undercover FBI agent posing as an investor that he received no commissions. Baker admitted that he lied to the agent about commissions. “[A] broker cannot affirmatively tell a misleading half-truth about a material fact to a potential investor ... [because] the duty to disclose in these circumstances arises from the telling of a half-truth, independent of any responsibilities arising from a truth relationship.” United States v. Laurienti, 611 F.3d 530, 541 (9th Cir.2010). Baker’s affirmative misrepresentations that he would receive no commissions until the investors received a profitable return supported his fraud conviction without the need to prove a fiduciary relationship. See, United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.1986) (“Proof of an affirmative, material misrepresentation supports a conviction of mail fraud without any additional proof of a fiduciary duty.”). The district court did not err in allowing the victims to testify about Baker’s representations and omissions about commissions. b. The Lay Opinion Testimony Baker and Nelson argue that the district court erred in allowing Allen Bruce Agler, who had worked in several movie telemarketing boiler rooms (including for Cinamour during the fundraising for From Mexico With Love between 2005 and 2007), to testify about boiler-room management, activity, and strategy. Agler’s testimony included his opinions about the information and knowledge telemarketers have when they cold-call potential investors and when they close a deal. Agler’s testimony was not admissible under Rule 702 of the Federal Rules of Evidence because the government did not give the defendants the notice required under Rule 16 of the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 16(a)(1)(G) (requiring, at the defendant’s request, pretrial disclosure of expert witnesses and a written summary of their testimony). Baker and Nelson argue that this limit could not be avoided by admitting Agler’s testimony as lay opinion testimony under Rule 701. “The admissibility of lay opinion testimony under Rule 701 is committed to the sound discretion of the trial judge and his decision will be overturned only if it constitutes a clear abuse of discretion.” United States v. Gadson," } ]

[ { "docid": "6927366", "title": "", "text": "Code). Section 101(54) defines a transfer as: (A) the creation of a lien; (B) the retention of title as a security interest; (C) the foreclosure of a debtor’s equity of redemption; or (D) each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with— (i) property; or (ii) an interest in property. Property that can be transferred for the purposes of § 727(a)(2)(A) includes money belonging to the debtor. In re DiLoreto, 266 Fed.Appx. 140, 143, 144 n. 2; In re Spitko, 357 B.R. 272, 302 (Bankr.E.D.Pa.2006). I find that the repayment of older creditors with money obtained from new loans during this time period qualifies as the transfer of property belonging to Rose within one year of his Chapter 7 filing. The new loan proceeds became Rose’s property when a loan was funded. He then transferred his money/property to repay some or all of an older loan. I will now discuss whether Rose transferred this property with the intent necessary to justify a denial of discharge pursuant to § 727(a)(2)(A). B. Intent The UST asserts that Rose operated and maintained a Ponzi scheme. The UST argues that, therefore, a presumption of an intent to hinder, delay, or defraud creditors should exist as a result of the alleged Ponzi scheme. Second, the UST argues that such intent can be inferred from the surrounding circumstantial evidence. The party seeking a denial of discharge under § 727(a)(2)(A) has the burden of showing actual fraudulent intent, rather than mere constructive fraud. In re Miller, 39 F.3d 301, 306 (11th Cir.1994) (citing In re Wines, 997 F.2d 852, 856 (11th Cir.1993)). However, fraudulent intent may be established by circumstantial evidence, or by inferences drawn from a course of conduct. In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986). 1. The applicability of the “Ponzi Scheme Presumption” In fraudulent transfer cases, many courts have applied a “Ponzi Scheme Presumption” to support a finding of actual fraudulent intent necessary to avoid a transaction pursuant to § 548, commonly referred to as fraudulent transfer. See, e.g., In re Manhattan Inv. Fund" } ]

[ { "docid": "3447726", "title": "", "text": "of fact, not ordinarily subject to resolution on a motion for summary judgment. However, intent may be decided at the summary judgment stage, “[wjhen the evidence is so one sided that reasonable minds could not differ as to the only rational outcome ... the factual issue of intent can be decided by the court as a matter of law.” Okan’s Foods, 217 B.R. at 755 (emphasis added) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-252, 106 S.Ct. 2505); accord In re Dygert, 2000 WL 630833, at *9 (Bankr.D.Minn. May 11, 2000). B. Applicability of § 727(a)(2) in this Adversary Proceeding The main thrust of the Plaintiffs claim is that the Debtors failed to schedule assets, failed to disclose pre-petition transfers and undervalued scheduled assets. In support of his request for denial of the Debtors’ discharge, the Plaintiff invokes only 11 U.S.C. § 727(a)(2). There is case law supporting the proposition that the failure to schedule assets, if done with intent to defraud creditors, constitutes a concealment of property for purposes of the denial of discharge under 11 U.S.C. § 727(a)(2). Such purposeful conduct would appear to fall literally within the terms of 11 U.S.C. § 727(a)(2)(B) as a concealment “of property of the estate, after the date of the filing of the petition”' — at least if the schedules are filed after the petition. There is contrary authority, however, suggesting that such claims should be raised under 11 U.S.C. § 727(a)(4), as a “false oath,” made “knowingly and fraudulently.” Along the same lines, § 727(a)(2) also might not be the proper legal theory for the Plaintiffs allegations that the Debtors undervalued disclosed assets and failed to disclose pre-petition transfers; perhaps such claims are more appropriate raised under § 727(a)(4). However, I need not resolve these issues. The Debtors have not disputed the legal sufficiency of the Plaintiffs claims under § 727(a)(2). Their lack of interest in the issue is understandable because, in the context of a request for denial of discharge for failing to schedule assets, there is little difference between § 727(a)(2) and the “false oath” prong" }, { "docid": "3447725", "title": "", "text": "727(a)(2). The exception can be viewed as having two (2) core components: (1) “an act (i e., a transfer or a concealment of property) and (2) scienter (i.e., a subjective intent to hinder, delay, or defraud a creditor).” See Rosen, 996 F.2d at 1531. The text of § 727(a)(2) further breaks down the “act” requirement into three (3) distinct elements: (1) the act was done at a time subsequent to one year before the filing of the petition or after the date of the filing of the petition; (2) the act was that of the debtor or his duly authorized agent; and (3) that the act consisted of transferring, removing, destroying or concealing any of the debtor’s property. The requirement that a plaintiff establish that the debtor had an actual intent to hinder, delay, or defraud creditors “may be established by circumstantial evidence, or by inferences drawn from a course of conduct.” Adeeb, 787 F.2d at 1342-43 (citation omitted); accord Rosen, 996 F.2d at 1533. A debtor’s intent generally is considered to be a question of fact, not ordinarily subject to resolution on a motion for summary judgment. However, intent may be decided at the summary judgment stage, “[wjhen the evidence is so one sided that reasonable minds could not differ as to the only rational outcome ... the factual issue of intent can be decided by the court as a matter of law.” Okan’s Foods, 217 B.R. at 755 (emphasis added) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-252, 106 S.Ct. 2505); accord In re Dygert, 2000 WL 630833, at *9 (Bankr.D.Minn. May 11, 2000). B. Applicability of § 727(a)(2) in this Adversary Proceeding The main thrust of the Plaintiffs claim is that the Debtors failed to schedule assets, failed to disclose pre-petition transfers and undervalued scheduled assets. In support of his request for denial of the Debtors’ discharge, the Plaintiff invokes only 11 U.S.C. § 727(a)(2). There is case law supporting the proposition that the failure to schedule assets, if done with intent to defraud creditors, constitutes a concealment of property for purposes of the denial" }, { "docid": "20990558", "title": "", "text": "D. Count II—Objection to Discharge Under Section 727(a) (2)-(5) & (7) Count II of the Amended Complaint alleges that Sobol violated § 727(a)(2)-(5) & (7). I will again strictly construe the exceptions to discharge against Symonies and liberally construe the language of the statute in favor of Sobol pursuant to In re Cohn and its progeny. In re Cohn, 54 F.3d at 1113; In re Marques, 358 B.R. at 193; In re Roemmele, 2011 WL 4804833, at *4. I will first analyze Symonies’ claim under § 727(a)(2). i. Section 727(a)(2) The relevant portion of § 727(a) reads as follows: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition 11 U.S.C. § 727. Essentially, a plaintiff must establish three elements to satisfy to satisfy its burden of proof under § 727(a)(2)(A). In re Spitko, 357 B.R. 272, 299 (Bankr.E.D.Pa.2006). First, the disposition of property, such as a transfer or concealment. In re Spitko, 357 B.R, at 299. Second, subjective intent by the debtor to hinder, delay, or defraud one or more creditors. Id. Third, both the disposition of property and subjective intent must have occurred within one year before the date of filing the petition. Id. The plaintiff bears the burden of proving these elements by a preponderance of the evidence. In re Lehmann, 511 B.R. 729, 734 (Bankr.M.D.Pa.2014). Similar to § 727(a)(2)(A), § 727(a)(2)(B) requires that a plaintiff first establish “an act, such as the transfer or concealment of estate property.” In re Luby, 438 B.R. 817, 828 (Bankr.E.D.Pa.2010); In re Finney, 333 B.R. 242, 247 (Bankr.W.D.Pa.2005). The transfer or concealment of estate property must occur after the petition date. 11 U.S.C. § 727(a)(2)(B); In re Finney, 333 B.R. at 247. Second, a plaintiff must also" }, { "docid": "20554015", "title": "", "text": "CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. . These personal expenses included, inter alia, his credit card bills and part of his mortgage and utility bills. Packer also owned several other companies, but his involvement with PCH is the focus of much of this litigation. . Although Judgment Factors claimed in the bankruptcy court that the denial of a discharge was warranted under § 727(a)(5), it has effectively abandoned that claim on appeal. Judgment Factors mentions § 727(a)(5) only once in its opening brief, which amounts to a waiver of its argument on whether summary judgment was properly granted to Packer under § 727(a)(5). See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.2010) (failing to adequately address an argument on appeal waives that argument). . In its briefing to this court, Judgment Factors argues that it “desired to have the Bankruptcy Court determine whether Debtor’s course of conduct through the use of one or more of his wholly-owned corporate entities evidenced an intent to hinder, delay, or defraud Debtor’s creditors.\" . In fact, Judgment Factors never even argued that the Trustee unjustifiably refused to pursue any claims in either this court or the bankruptcy court. .This statute provides: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition ... 11 U.S.C. § 727(a)(2)(A). . The statute provides in full: (a) The court shall grant the debtor a discharge, unless— (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case____" }, { "docid": "14255280", "title": "", "text": "(2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A). Thus, two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Granting of security for a debt is a transfer under the Bankruptcy Code. See 11 U.S.C. § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, Lawson’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of section 727(a)(2). The parties do not dispute that the transfer at issue took place and also agree it was recorded more than one year prior to the filing of the petition. Pursuant to the one-year time limitation in section 727(a)(2)(A), the deed of trust could not serve alone as a basis for denying Lawson’s discharge. The bankruptcy court accepted that Lawson’s mother was a creditor and that the deed of trust, although preferential, was not necessarily a fraudulent transfer. The question presented in this appeal, however, is whether the transfer could serve as a basis for a concealment of property within the one year prior to filing of the petition. Under the “continuing concealment” doctrine, a transfer made and recorded more than one year prior to filing may serve as evidence of the requisite act of concealment where the debtor retains a secret benefit of ownership in the transferred property within the year prior to filing. See In re Olivier, 819 F.2d 550, 555 (5th Cir.1987) (citing and discussing cases). Our circuit has not yet adopted the doctrine of “continuing concealment,” but the" }, { "docid": "12239650", "title": "", "text": "transfer, intent to hinder, delay, or defraud a creditor. In re Clausen, 44 B.R. 41, 43 (Bankr.D.Minn.1984). In the four sequences of events, Debtor’s sale of his 1984 crop, his allegedly-wrongful disposition (as actually occurred or as accused by Plaintiff) of various items of farming equipment, and his alleged transfer to his children of his dissolution lien rights, warrant application of § 727(a)(2)(A). As to the transfer of the 1984 crop, it is uncontested that Debtor did in fact transfer the crop to two different elevators within one year of the commencement of his bankruptcy case; thus, Plaintiff has satisfied the first and third elements. However, Plaintiff's case as to the transfer of the 1984 crop fails as a matter of law as to the second element; in addition, Plaintiff has failed to come forward with evidence to rebut Debtor’s statement that in making the transfer he never had the specific intent to hinder, delay or defraud it, required under the fourth element, and an inference of such an intent is utterly unsupported by the record. In complaining of Debtor’s sale of the 1984 crop, Plaintiff is protesting an alleged unauthorized disposition of its security, and nothing more. While such malfeasance may be addressed in a bankruptcy case, it is not appropriately addressed under 11 U.S.C. § 727(a)(2)(A). This court agrees with those courts which have found that an unauthorized sale of a creditor’s collateral security is a transfer, removal, or destruction of property of that creditor, and not of “property of the debtor” within the meaning of § 727(a)(2)(A). In re Holtz, 62 B.R. 782, 787 (Bankr.N.D.Iowa 1986); In re Ellefson, 54 B.R. 16, 17 (Bankr.W.D.Wis.1985); In re Harris, 8 B.R. 88, 90-91 (Bankr.M.D.Tenn.1980); In re McCloud, 7 B.R. 819, 822 (Bankr.M.D.Tenn.1980). See also In re Morris, 12 B.R. 509, 511 (Bankr. D.Nev.1981) (debtors’ transfer of secured property to lienholder whose security interest was senior to that of complaining creditor in same property did not transfer property of debtors within meaning of § 727(a)(2)(A)). The purpose behind § 727(a)(2)(A) is to deny discharge to a debtor who intentionally hinders," }, { "docid": "5173016", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW CLIVE W. BARE, Bankruptcy Judge. This cause came for trial on the 6th and 25th days of January, 1982, upon the complaint filed by the plaintiff, the answer of defendant, the stipulation of the parties, the testimony of witnesses and exhibits in support thereof and on the record as a whole. The court concludes as a preliminary matter that the defense of res judicata, raised by the defendant cannot be sustained. The previous action upon which the defendant relies for this defense was an adversary proceeding initiated by the trustee against the defendant. The instant action involves a complaint initiated by a creditor against the defendant. 11 U.S.C. 727(c)(1) states that the trustee or a creditor may object to discharge under § 727(a). Since the prior suit involved a different party or more specifically, a different plaintiff, this defense is not available. The complaint of the plaintiff seeks relief under 11 U.S.C. 727(a)(2), which states: “The debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred— (A) Property of the debtor, within one year before the date of the filing of the petition; or ...” Under this statute, four elements are required to be proven. The plaintiff must prove that: 1. A transfer of property has occurred; 2. It was property of the debtor; 3. The transfer was within one year of the date of filing of the petition; 4. The defendant had, at the time of the transfer, the intent to hinder, delay or defraud a creditor. The stipulation of the parties herein has established that the defendant transferred a house owned solely by her on July 1, 1980, which was within one year of the filing of the original petition on June 10, 1981. Therefore, the first three elements are satisfied and it is only necessary to discuss whether the required intent has been proven. The defendant testified that the house transferred on July 1, 1980, was originally purchased by her and her ex-husband for the sum of $15,000.00 and that she received sole title to the house" }, { "docid": "23022624", "title": "", "text": "That per se approach is inconsistent with consideration of all the relevant factors in determining intent. Because the bankruptcy court applied an incorrect interpretation of materiality and that interpretation informed its view of intent, we reverse the grant of summary judgment in favor of Debtors on the § 727(a)(4) claim. (2) Fogal’s Motion for Summary Judgment Fogal argues that the bankruptcy court erred in denying its motion for summary judgment. Summary judgment is ordinarily not appropriate in a § 727 action where there is an issue of intent. See, e.g., In re Stuerke, 61 B.R. 623 (9th Cir. BAP 1986) (fraud claims so attended by factual issues that summary judgment seldom possible). Fogal is not entitled to summary judgment under § 727 because the record in this case, unlike in Devers, includes credible evidence beyond mere self-serving statements of intent which creates a genuine issue of material fact as to whether Debtors acted with the requisite intent under § 727. For example, the record includes evidence that Debtors transferred assets on the advice of their accountant for tax considerations. 2. Section 727(a)(2)(A) Section 727(a)(2)(A) provides that a court shall grant a debtor a discharge unless “the debtor, with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” “Two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor...” In re Beauchamp, 236 B.R. 727, 732 (9th Cir. BAP 1999) (quoting In re Lawson, 122 F.3d 1237, 1240 (9th Cir.1997)). The transfer must occur within one year prepetition. Lawson, 122 F.3d at 1240. Lack of injury to creditors is irrelevant under § 727(a)(2). In re Bernard, 96 F.3d 1279, 1281-82 (9th Cir.1996). As with § 727(a)(4)(A), intent may be inferred from the actions of the debtor. Devers, 759 F.2d at 753-54." }, { "docid": "12239649", "title": "", "text": "of the objections to discharge pleaded by Plaintiff. It is also clear that Plaintiff, as the party objecting to discharge, has the burden of proving up all elements of the objection. BANKR.R. 4005; In re Scarbaci, 34 B.R. 344 (Bankr.S.D.Fla.1983). A. . § 727(a)(2): Transfer of property with intent to hinder, delay, or defraud a creditor. Plaintiff’s major objection to discharge is founded on the following provision of 11 U.S.C. § 727(a)(2): (a) The court shall grant the debtor a discharge, unless— (a) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition ... A petitioning creditor must prove four basic elements under-§ 727(a)(2)(A): 1. A transfer of property occurred, made by the debtor or made at his sufferance; 2. The transfer involved property of the debtor; 3. The transfer was made within one year of the commencement of the bankruptcy case; 4. The debtor had, contemporaneously with the transfer, intent to hinder, delay, or defraud a creditor. In re Clausen, 44 B.R. 41, 43 (Bankr.D.Minn.1984). In the four sequences of events, Debtor’s sale of his 1984 crop, his allegedly-wrongful disposition (as actually occurred or as accused by Plaintiff) of various items of farming equipment, and his alleged transfer to his children of his dissolution lien rights, warrant application of § 727(a)(2)(A). As to the transfer of the 1984 crop, it is uncontested that Debtor did in fact transfer the crop to two different elevators within one year of the commencement of his bankruptcy case; thus, Plaintiff has satisfied the first and third elements. However, Plaintiff's case as to the transfer of the 1984 crop fails as a matter of law as to the second element; in addition, Plaintiff has failed to come forward with evidence to rebut Debtor’s statement that in making the transfer he never had the specific intent to hinder, delay or defraud it, required under the fourth element, and an inference of such an intent is utterly unsupported by the" }, { "docid": "12162474", "title": "", "text": "well established that ... a debtor’s conversion of non-exempt property to exempt property on the eve of bankruptcy for the express purpose of placing that property beyond the reach of creditors, without more, will not deprive the debtor of the exemption to which he otherwise would be entitled”). B. Denial of Discharge Following the bankruptcy court’s ruling on the Trustee’s objections to exemptions, wherein it found that Addison had converted nonexempt assets into his homestead and Roth IRA with the intent to hinder, delay, or defraud a creditor, the Trustee filed an adversary proceeding objecting to Addison’s discharge under § 727(a)(2) of the Code. Section 727(a)(2) of the Bankruptcy Code states, in relevant part, that: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition 11 U.S.C. § 727(a)(2) (emphasis added). The Trustee’s objection to discharge cited, among other things, Addison’s conversion of nonexempt assets into his homestead and Roth IRA. As there was no dispute that Addison had made the transfers to his homestead and the Roth IRA within one year before his bankruptcy filing and that the transfers were made from property of the debtor, the only issue before the bankruptcy court was whether these transfers had been made “with intent to hinder, delay, or defraud a creditor.” Because the bankruptcy court had already determined, in ruling on the Trustee’s objections to exemptions, that Addison had made the transfers to his homestead and Roth IRA with the intent to hinder, delay, or defraud a creditor, the bankruptcy court granted the Trustee’s motion for summary judgment on collateral estoppel grounds and denied Addison’s discharge. In this case, the same standard applies to determine whether a discharge should be denied or whether a transfer of nonexempt property to exempt property should be voided; both require proof that the debtor acted with the" }, { "docid": "780523", "title": "", "text": "and his other investments. He was, according to him, all but destitute and penniless. Jacobs II, 52 D. & C.4th at 384. Based on the findings of the Trial Court, the Trustee urges this court to apply collateral estoppel to grant summary judgment on his § 727(a)(2)(A) claim. C. Application of Collateral Estoppel to the § 727(a)(2)(A) Claim 1. summary of the Trustee’s theory of the case The Trustee asserts that, by virtue of the doctrine of collateral estoppel, the Debtor is precluded from contesting the Trial Court’s findings in the Viener Litigation. The consequence, the Trustee contends, is that there are no disputed issues of fact and that he is entitled to judgment as a matter of law under § 727(a)(2)(A). Specifically, the Trustee argues that the Debtor’s discharge should be denied based on his concealment of his ownership of Hillcrest. See Trustee’s Brief in Support of Summary Judgment (“Trustee’s Brief’) at 5. The Trustee’s theory of summary judgment requires that I find that: (1) the Debtor owned Hillcrest at the time he made his disclosure to the Trial Court in the damages phase of the Viener Litigation; (2) he concealed that ownership; (3) with intent to hinder, delay or defraud a creditor; (4) within one year of the commencement of the bankruptcy case. The Debtor vigorously contests every step in this theory. As detailed below, the doctrine of collateral estoppel allows the Trustee to satisfy the first step in the argument. However, that is the extent of the benefit the Trustee can obtain from the doctrine. There fore, the Motion falls short under § 727(a)(2)(A). 2. general principles governing the doctrine of collateral estoppel The doctrine of collateral estoppel is applicable in bankruptcy proceedings involving the denial of a discharge under § 727. The use of a prior state court decision to preclude the relitigation of issues in a subsequent federal proceeding is grounded in 28 U.S.C. § 1738, which provides: ... Acts, records and judicial proceedings [of any court of a State, Territory, or Possession of the United States] shall have the same full faith and credit" }, { "docid": "13078031", "title": "", "text": "OPINION OF THE COURT STAPLETON, Circuit Judge: This is an appeal by a Chapter 7 debtor of an order of the district court affirming a denial of discharge issued by the bankruptcy court pursuant to 11 U.S.C. § 727(a)(2)(A). In granting summary judgment for the trustee, the bankruptcy court relied on the “continuing concealment” doctrine to conclude that the debtor had concealed an asset during the year before bankruptcy with an intent to hinder, delay, or defraud a creditor. For the reasons set forth below, we will reverse and remand for further proceedings. I. On December 28, 1987, Morris Rosen transferred his interest in his principal residence to his wife Laurie Rosen for no consideration. The deed was properly recorded two days later. Morris Rosen continued to live in this residence, continued to make mortgage payments, and continued to be obligated on the mortgage notes on the property. In the course of civil litigation between Rosen and his principal creditor in May 1988, Rosen offered testimony disclosing this transfer of title. On September 12, 1989, Rosen filed a chapter 7 bankruptcy petition. At the first meeting of creditors, Rosen again testified about the transfer of title. On March 23, 1990, the chapter 7 trustee filed a proceeding against Rosen seeking to avoid the transfer of Rosen’s interest in the property. The bankruptcy court granted summary judgment for the trustee, finding that Rosen, “with the actual intent to hinder, delay, or defraud a creditor,” transferred his interest in his principal residence to his wife. In addition, the court granted the trustee leave to amend her complaint to add a count seeking to bar the debtor’s discharge. The trustee subsequently filed a motion seeking to block Rosen’s discharge, and on October 15, 1991, the bankruptcy court granted summary judgment to the trustee on this motion. On May 6, 1992, the district court entered an order affirming the bankruptcy court. Rosen filed this timely appeal. II. Summary judgment is proper only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as" }, { "docid": "2505624", "title": "", "text": "U.S.C. § 727(a) has been delayed pending the outcome of this adversary proceeding. CONCLUSIONS OF LAW Plaintiff prays for a denial of Debt- or’s discharge in bankruptcy under the following provision of 11 U.S.C. § 727(a): (a) The court shall grant the debtor a discharge, unless— (2) The debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition ... This provision, as all provisions for objection to the full discharge in bankruptcy under § 727(a), must be construed strictly in favor of the debtor, and strictly against the objecting creditor. See, e.g., In re Schmit, 71 B.R. 587, 589-90 (Bankr.D.Minn.1987); In re Drenckhahn, 77 B.R. 697, 701 (Bankr.D.Minn.1987); In re Johnson, 80 B.R. 953, 957 (Bankr.D.Minn.1987). The petitioning creditor bears the burden of proving all of the elements set forth under the statute. BANKR.R. 4005; In re Drenckhahn, 77 B.R. at 705. The statutory elements under 11 U.S.C. § 727(a)(2)(A) are as follows: 1. A transfer of property has occurred, made by the debtor or made at his direction or request; 2. A transfer involved property of the debtor; 3. The transfer was made within one year of the commencement of the bankruptcy case; 4. The debtor had, contemporaneously with the transfer, intent to hinder, delay or defraud a creditor or the trustee in bankruptcy. In re Johnson, 80 B.R. at 957-58; In re Drenckhahn, 77 B.R. at 704; In re Clausen, 44 B.R. 41, 43, (Bankr.D. Minn.1984). See also In re Bateman, 646 F.2d 1220, 1222 (8th Cir.1981) (applying § 14c(4) of Bankruptcy Act of 1898). Plaintiff has proven up the first three elements; Debtor’s transfers of his interests in the Washburn and Itasca County properties did occur within one year of his bankruptcy filing. The real issue in this adversary proceeding is whether Debtor made these transfers with an" }, { "docid": "15566881", "title": "", "text": "be overruled. The Plaintiff was not her creditor but her husband’s, and the Plaintiff could not reach her interest in the property to satisfy its judgment against her husband. In short, her conveyance of her interest in the property did not defraud the Plaintiff. Id. at 96. In Rosen’s Inc. v. Souers (In re Souers), No. 93-93080, 1996 WL 34486696, *5-6 (Bankr.S.D.Iowa June 14, 1996), the bankruptcy court explicitly relied on § 727(c)(1) in dismissing the plaintiffs complaint objecting to discharge as to the joint debtor-wife for lack of standing, where the plaintiff held a guaranty signed only by the debtor-husband and was therefore not the debtor-wife’s creditor. The court held that “a party whose claim has been conclusively disproved does not have standing and cannot object to a debtor’s discharge.” Id. at *6. Based on the foregoing discussion, the Panel concludes that the bankruptcy court may not deny a co-debtor a chapter 7 discharge under § 727(a)(2)(A), regardless of the co-debtor’s intent, in the absence of consolidation, when the complaining party is not his/her creditor as required by § 727(c)(1). It follows that because War-ehol is not Mrs. Barry’s creditor, she has no standing under § 727(c)(1) to object to Mrs. Barry’s discharge. Accordingly, the bankruptcy court committed an error of law in denying Mrs. Barry a discharge. B. Mr. Barry The first prong of Mr. Barry’s argument is that he “presented legitimate reasons for the transfers” which preclude a finding of actual intent to hinder or delay. He claims that he and Mrs. Barry granted the April 2007 mortgage and the August 2007 mortgage to Carragher, Fox & Roark, P.C. because the firm “refused to provide legal services absent security.” Similarly, he contends that they granted the September 2007 mortgage because the grantee, White Street Paint and Wallpaper Co., Inc., “refused to provide any more materials to [Barry] unless the Barrys did something with respect to an outstanding indebtedness .... ” Lastly, he contends that they granted the October 2007 mortgage, fearing “legal repercussions if they did not satisfy their payment obligation” to Barron & Stadfeld, P.C. Mr." }, { "docid": "4569691", "title": "", "text": "business income; and failed to disclose the existence and/or value of certain assets. The Barrys concede that Kevin made a mistake in taking on a job that exceeded his qualifications, but maintain that his actions on the Warchol job and any alleged misconduct that followed violated neither §§ 523 or 727. Kevin contends that when he entered into the contract with Warchol, he believed that he could properly perform the work. The Barrys maintain that the mortgages granted on their Methuen Property in the year prior to their bankruptcy case filing were intended solely to pay creditors. While Kevin acknowledges that his affidavit before the Superior Court was not fully accurate, Kevin states he was not trying to mislead the Superior Court or impede Warchol. The Barrys also argue that personal hardships, including an illness from which Kimberly was suffering during the relevant time period, account for their failure to keep thorough records. In sum, the Barrys maintain that War-chol’s debt is dischargeable, and that they are entitled to their Chapter 7 discharges. III. DISCUSSION A. Section 727(a)(2)(A) Section 727(a)(2)(A) of the Bankruptcy Code states: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition ... 11 U.S.C. § 727(a)(2)(A) (2010). The Bankruptcy Appellate Panel for the First Circuit has held that “[s]ection 727(a)(2)(A)’s bar to discharge comprehends four elements ... :(1) the debtor transferred, removed, concealed, de stroyed, or mutilated, (2) his or her property, (3) within one year of the bankruptcy petition’s filing, (4) with the intent to hinder, delay, or defraud a creditor.” R.I. Depositors Econ. Prot. Corp. v. Hayes (In re Hayes), 229 B.R. 253, 259 (1st Cir. BAP 1999). See also Rowlands v. Fraser & AJF Fin. Corp. (In re Rowlands), 346 B.R. 279," }, { "docid": "10706735", "title": "", "text": "in the Bankruptcy Court’s determination that collateral estoppel applied to certain factual findings contained in the State Court Action and the Chapter 11 Proceeding. D. The Bankruptcy Court’s Determination that Harley Kane’s Discharge was Barred Pursuant to 11 U.S.C. § 727(a)(7) Count III of the adversary complaint sought a denial of discharge under Sections 727(a)(7) and 727(a)(2) by claiming that Harley Kane caused the Partnership to pay his personal, non-dis-chargeable debts with the intent to delay and hinder Appellees’ ability to collect funds under the State Court Judgment. Section 727(a)(7) provides that a bankruptcy court “shall grant the debtor a discharge, unless ... the debtor has committed any act specified in paragraph (2), (3), (4), (5), or (6) of this subsection, on or within one year before the date of the filing of the petition, or during the case, in connection with another case, under this title or under the Bankruptcy Act, con-ceming an insider....” 11 U.S.C. § 727(a)(7) (emphasis added). “To deny a debtor’s discharge under § 727(a)(2), the plaintiffs must show that the debtor transferred, removed, destroyed, mutilated, or concealed property with the intent to hinder, delay, or defraud his creditors.” In re Tipler, 360 B.R. 333, 340 (Bankr.N.D.Fla.2005) (citations omitted). “The plaintiffs bear the burden of demonstrating actual fraudulent intent.” Id. (citing In re Miller, 39 F.3d 301, 306 (11th Cir.1994)). “However, because a debtor is unlikely to admit his fraudulent intent, a finding of actual intent may be based on circumstantial evidence or inferred from the surrounding facts and circumstances.” Id. (citations omitted). To prevail on a claim under Section 727(a)(2) regarding a previous bankruptcy proceeding involving an insider, a creditor must “establish by a preponderance that (1) there was destruction or concealment, (2) within one year of the filing of the debtor’s case, (3) of the property of the estate of an insider, (4) by the debtor, (5) with the intent to hinder, delay, or defraud creditors.” In re Phillips, 418 B.R. 445, 465 (Bankr.M.D.Fla.2009) (citing In re Unger, 333 B.R. 461, 470 (Bankr.M.D.Fla.2005)); see also In re Weisenfeld, No. 09-AP-2526AJC, 2011 WL 1048563, at" }, { "docid": "8337676", "title": "", "text": "also seeks to have Debtor denied his general discharge in bankruptcy as a sanction for the making of the transfer, pursuant to 11 U.S.C. § 727(a)(2)(A). She has focused her theory of recovery in the fraudulent-transfer count on the “actual intent” provision of 11 U.S.C. § 548(a)(1). The discharge-objection provisions of 11 U.S.C. § 727(a)(2)(A) contain comparable language requiring a showing of actual intent to hinder, delay, or defraud creditors, on the part of the debtor. B. Defendants’ Arguments for Present Motion. Defendants argue that they are entitled as a matter of law to a judgment denying both of Plaintiffs requests for relief. They make two alternative arguments in support. First, Defendants argue that, as a matter of law, a debtor’s conveyance of property, which property is exempt from claims of creditors under state law, does not deprive such creditors of anything to which they would have been entitled otherwise. Under this argument, then, any transfer of exempt property is not a transfer within the ambit of 11 U.S.C. §§ 548(a)(1) and 727(a)(2), even if the debtor was motivated by a desire to frustrate creditors in making the transfer. Because the element of intent is irrelevant under this variant analysis, and because the only factual elements going directly to this argument are undisputed, the issue is purely legal in nature. In the alternative, Defendants acknowledge for the sake of argument that Debt- or’s creation of the joint tenancy constituted a transfer actionable under 11 U.S.C. §§ 548(a)(1) and 727(a)(2). They then argue that there is no evidence of record to support a finding that Debtor made the transfer with actual intent to hinder, delay, or defraud his creditors, asserting that Defendants’ evidence on the intent issue stands alone and unchallenged. Defendants maintain, accordingly, that there is no genuine issue of material fact as to the non-existence of a necessary element of both counts of Plaintiff’s complaint, and that they are entitled to judgment as a matter of law in their favor, denying all of Plaintiff’s requests for relief. II. Analysis of Defendants’ Motion. A. Alleged Absence of “Transfer of Property”" }, { "docid": "18553056", "title": "", "text": "substantial similarity between the language used in these provisions. The findings necessary to support a determination of actual intent to hinder, delay, and defraud creditors under O.C.G.A. § 18-2-22(2) are sufficiently identical to those required under 11 U.S.C. § 548(a)(1) to conclude that such findings are similarly dispositive of said issue in this case under Section 727(a)(2)(A). Plaintiff is not seeking to set aside Debt- or’s transfers of property, but he is not necessarily precluded from relying on this Court’s prior determinations with respect to such transfers in Adversary Proceeding No. 92-6843. The issue of Debtor’s intent in connection with the subject transfers was actually litigated in the prior action and its determination was essential to the Court’s judgment. Further, the Court finds no evidence that Debtor lacked adequate incentive to fully litigate this issue therein. Accordingly, based on this Court’s prior judgment and the findings and conclusions therein that the Debtor acted with actual intent to defraud his creditors when he transferred the subject property to his wife, Debtor is collaterally estopped from relitigating this issue herein. The remaining element in this action centers upon Debtor’s alleged concealment of a beneficial interest and the effect of the one year period prescribed in Section 727(a)(2)(A). Debtor argues that the application of this subsection is specifically restricted to those transfers occurring within one year of the petition date which, he claims, patently excludes the subject transfers to his wife. Existing case law, however, recognizes that a transfer or an initial act of concealment occurring prior to this one year period may, nonetheless, warrant denial of discharge if the transfer is concealed or a beneficial interest is secretly retained into this period. See Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550 (5th Cir.1987); Friedell v. Kauffman (In re Kauffman), 675 F.2d 127 (7th Cir.1981); Penner v. Penner (In re Penner), 107 B.R. 171 (Bankr.N.D.Ind.1989); see also Rosen v. Bezner, 996 F.2d 1527, 1532 (3d Cir.1993). Debtor maintains that, because the transfers were filed of public record, they could not have been concealed. Concealment under the statute, however, includes an apparent transfer" }, { "docid": "23022625", "title": "", "text": "accountant for tax considerations. 2. Section 727(a)(2)(A) Section 727(a)(2)(A) provides that a court shall grant a debtor a discharge unless “the debtor, with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” “Two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor...” In re Beauchamp, 236 B.R. 727, 732 (9th Cir. BAP 1999) (quoting In re Lawson, 122 F.3d 1237, 1240 (9th Cir.1997)). The transfer must occur within one year prepetition. Lawson, 122 F.3d at 1240. Lack of injury to creditors is irrelevant under § 727(a)(2). In re Bernard, 96 F.3d 1279, 1281-82 (9th Cir.1996). As with § 727(a)(4)(A), intent may be inferred from the actions of the debtor. Devers, 759 F.2d at 753-54. The necessary intent under § 727(a)(2) “may be established by circumstantial evidence, or by inferences drawn from a course of conduct.” In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986) (quoting Devers, 759 F.2d at 753-54). As mentioned above, Debtors admit that they did not disclose certain transfers and that they omitted assets in their petition. The issues presented concern whether the bankruptcy court applied the correct standard of law and whether Debtors acted with the requisite intent. The bankruptcy court erred in granting Debtors’ motion for summary judgment. Although § 727(a)(2) does not contain a materiality element, the bankruptcy court applied considerations of materiality to Fogal’s § 727(a)(2)(A) claim. In addition, a genuine issue exists as to whether Debtors acted with the requisite intent. As with its consideration of intent under § 727(a)(4)(A), the bankruptcy court improperly limited its consideration of evidence supporting Fogal’s claim that Debtors acted with the requisite intent based on its conclusion that only false statements and omissions that cause direct financial prejudice to creditors are material. Debtors appear to" }, { "docid": "14255279", "title": "", "text": "appealed. STANDARD OF REVIEW Decisions of the Bankruptcy Appellate Panel are reviewed de novo. In re Alsberg, 68 F.3d 312, 314 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1568, 134 L.Ed.2d 667 (1996). The panel independently reviews the bankruptcy court’s rulings on appeal from the BAP. In re Roosevelt, 87 F.3d 311, 313 (9th Cir.1996). The panel reviews the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. Alsberg, 68 F.3d at 314. When a bankruptcy court denies a debtor’s discharge, a finding that the debtor acted with the intent to hinder, delay or defraud his creditors is reviewed for clear error. In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). DISCUSSION Lawson contends that the bankruptcy court clearly erred in finding that she concealed assets within one year before the date of filing the petition for relief with the intent to defraud, hinder, or delay a creditor. We disagree. Section 727 of the United States Bankruptcy Code directs courts to grant a debtor a discharge unless (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A). Thus, two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Granting of security for a debt is a transfer under the Bankruptcy Code. See 11 U.S.C. § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, Lawson’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of section 727(a)(2). The parties do not dispute that" } ]

[ { "docid": "22124199", "title": "", "text": "direct control, as well as indirect control through sub-agency. Use of the sub-servant principle to show a master-servant relationship, and hence establish control, is unnecessary when there is evidence that a borrowed servant is directly subject to the control of the railroad. See Kelley, 419 U.S. at 324, 95 S.Ct. at 476. Here, there is evidence that ConRail directly controlled Williamson’s activities when he was injured on October 23, 1986. This evidence is sufficient to support the jury’s finding that Williamson was either ConRail’s borrowed servant or the dual servant of ConRail and Penn Trucks when he was injured. To show why, we turn to an analysis of the evidence about the relationship between Williamson and ConRail on October 23, 1986, at the time he was injured. The evidence that shows an employer-employee relationship between Williamson and ConRail includes evidence of the relationship between ConRail and Penn Trucks. Penn Trucks is ConRail’s wholly owned subsidiary. ConRail itself previously performed the same operations now delegated to Penn Trucks with the same type of equipment Penn Trucks employs. Penn Trucks shares office space with ConRail. ConRail clerks have the power to assign work to Penn Trucks employees and change assignments previously given them by Penn Trucks supervisors. Because Con-Rail is responsible for the cargo while it is within the sealed trailers in the terminal, ConRail inspectors designate the use of the trailer and control the cargo transfers between trailers, even though those transfers are performed by Penn Trucks employees. In this case, the defective replacement trailer that Williamson was directed to use was chosen by ConRail. When damaged trailers had to be handled at the terminal, the record shows that either ConRail or Penn Trucks could transfer the load. Williamson testified that Penn Trucks would give the service if Con-Rail requested it. Williamson testified that he treated the inspector as his supervisor on the day of the accident and that the identity of the persons he took orders from depended on the job he was doing. Specifically, he testified that in making cargo transfers the person who was permitted to give him" } ]

[ { "docid": "20633151", "title": "", "text": "DUBINA, Circuit Judge: Appellant, Dorian Wayne Willard (“Willard”), appeals the district court’s orders denying his Rule 60(b) motion and granting summary judgment to defendants/ap-pellees, Fairfield Southern Company, Inc. (“Fairfield”) and Birmingham Southern Railroad Company (“BSRR”), the parent company of Fairfield, on Willard’s Federal Employer’s Liability Act (“FELA”) claim. For the reasons that follow, we affirm the district court’s orders. I. BACKGROUND A. Facts The district court found the following undisputed facts. In 1983, U.S. Steel Fairfield Works (“Fairfield Works”) transferred its rail operations to Fairfield, a newly formed corporation, which became a subsidiary of BSRR. BSRR is a common carrier by rail that holds itself out to the public for hire. Fairfield and BSRR share a Board of Directors, a trainmaster, office address, and emergency phone number. Fairfield pays BSRR a management fee for supervision of Fairfield’s employees. Fairfield’s trainmen and acting tower supervisors are the only Fairfield employees who work solely for Fairfield. All other Fairfield supervisors are also BSRR employees. Fairfield provides rail service to U.S. Steel Corporation (“U.S. Steel”), to two vendors of Fairfield Works whose facilities are located on U.S. Steel’s property (Fritz Enterprises and Tube City), and to U.S. Steel Mining Company, LLC (“U.S. Steel Mining”), a wholly owned subsidiary of U.S. Steel. Fairfield has separate and distinct contracts with Fairfield Works, U.S. Steel Mining, Fritz Enterprises, and Tube City. No common carrier, including BSRR, is a party to those contracts. Fair-field directly invoices its customers, and they, in turn, directly pay Fairfield for its services. Fairfield maintains a separate account which is used for funding its payroll and payments to vendors. Fairfield does not publish rate tariffs and does not receive any rate division from any common carrier railroad. Furthermore, Fairfield does not own or lease any railroad tracks, and it does not maintain any wharves, docks, or other public facilities for the receipt or handling of freight. Fairfield does not link two common carriers. It operates only on tracks owned by the customers it serves. Nor does it operate over the tracks of any common carrier railroad, including BSRR. In addition, Fairfield employees" }, { "docid": "13722640", "title": "", "text": "Therefore, if Bradsher had established at least a disputed claim of joint employment, the court should not have granted the motion for summary judgment. According to Bradsher’s deposition, he was directed in his duties by various MoPac employees. He worked on railroad equipment. He even performed maintenance on equipment in trains that had temporarily stopped in the railroad yard. In Kelley v. Southern Pacific, supra, 419 U.S. at 324-31, 95 S.Ct. at 476-479, the Supreme Court considered the case of an employee of Pacific Motor Transit (PMT) who was injured while unloading a tri-level auto rack (a railroad car used to carry automobiles). PMT was a wholly-owned subsidiary of Southern Pacific. The district court allowed recovery on the grounds that PMT was Southern Pacific’s agent, performing a function that was a contractual duty of the railroad. The court of appeals and the Supreme Court reversed and remanded. The Supreme Court ordered the reversal and remand on the grounds that the district court’s standard was erroneous. The Court held that to satisfy FELA, the railroad must have “control or right to control” the actions of the worker. Id. at 325-26, 95 S.Ct. at 476-477. Our court held in Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982), that an employee of a railroad’s wholly-owned subsidiary trucking company fell within FELA coverage where it was shown that the railroad exerted “actual control and supervision over the performance of [the employee’s] services.” Id. at 199. In that case, Warren Vanskike had been injured while employed by Frisco Transportation Company. Similar to the arrangement in this case, St. Louis-San Francisco Railroad Company (Frisco Railroad) contracted with Frisco Transportation Company to load semi-trailers onto and offload them from railroad cars in piggy-back service. Vanskike, assisted by a co-worker, was loading piggy-back trailers on flatcars in Springfield, Missouri, when the fifth wheel hitch on a flatcar fell on Vanskike’s arm as he attempted to raise the hitch. Vanskike sued Frisco, the manufacturer of the railroad car, and the owner of the car." }, { "docid": "22854991", "title": "", "text": "in any “special sense,” the Court reasoned that the issue of employment “contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a.” Id., at 228. Ward v. Atlantic Coast Line R. Co., 362 U. S. 396 (1960), involved similar considerations to those in Baker. The petitioner was employed as a laborer by the railroad, but he was working on his day off with a crew which was fixing a siding track that belonged to a third party. Since the petitioner was being paid by this third party on the day of the injury, a question existed as to whether the petitioner was an employee of the railroad at the time of the accident. We held that the trial judge had improperly charged the jury to consider only one factor, that of the awareness of the victim that he was working for a third party on the day in question. We noted that a number of factors must be considered under Restatement (Second) of Agency § 220. Many Courts of Appeals have been confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K-T R. Co. v. Hearson, 422 F. 2d 1037 (CA10 1970), the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed the District Court ruling that reasonable men could not differ in the conclusion that the victim was in an employment relationship with the railroad for FELA purposes. In Schroeder v. Pennsylvania R. Co., 397 F. 2d 452 (CA7 1968), the deceased worker was nominally an employee of a trucking company which was under contract to perform certain pickup and delivery services for" }, { "docid": "22855004", "title": "", "text": "a matter of law that the workman was not in such a relationship to the railroad at the time of his death as to entitle him to the Act’s protection. The state courts refused to disturb the judgment for the railroad. This Court, however, held that the Act does not use the terms “employee” and “employed” in any special sense, and that the familiar general legal problems as to whose employee or servant a worker is at a given time present themselves as matters of federal law under the Act. Each case, the Court said, must be decided on its peculiar facts and “ 'ordinarily no one feature of the relationship is determinative.’ ” The Court concluded that it was “perfectly plain” that the question “contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law.” Id., at 228. It pointed out that the petitioners introduced evidence tending to prove that the work “was part of the maintenance task of the railroad”; that the road “furnished the material to be pumped into the roadbed”; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job. Ibid. The railroad introduced evidence tending to controvert this. The Court then held that an issue for determination by the jury was presented. So it is here. Kelley was injured at the railroad’s loading-and-unloading ramp in San Francisco. He and others were unchaining new automobiles for unloading when he fell from the third level of the railroad car. He was hired, paid by, and could be discharged by the railroad’s wholly owned subsidiary. All the officers and directors of that subsidiary were officers or directors of the railroad. The subsidiary was the only company then having a contract with the railroad to unload cars at that ramp. Kelley had been employed at this particular job and at this site for eight years and was paid on an hourly basis. The unloading was the railroad’s responsibility pursuant to" }, { "docid": "3835934", "title": "", "text": "Souter and just as it did after Souter terminated the contract shortly after appellee’s injury. The Katy’s yardmaster determined which cars appellee should clean and told him where they were. Souter himself never was around when appellee was working except in a few instances. It is not important that the railroad was not looking over appellee’s shoulder while he was working because appellee was concededly a very good worker who required no direction in doing such a relatively simple task. Although Katy did not seek to decide whether appellee should sweep from left-to-right or right-to-left, the Katy did reserve and exercise control over all the other details of the cleaning job. It was the railroad that determined whether the cars were cleaned properly and whether they should be sent back for re-cleaning. Testimony was that if the railroad’s yardmaster came over to appellee and gave him instructions or told him to sweep out the corners, appellee should and would have complied. It is of no moment that appellee had no set work schedule because the evidence is that the Katy could directly call appellee out to the yards when it needed him, and on at least one occasion they called him at night and had him come out to clean ears. This, more than anything else, manifests the control which the railroad maintained over the car-cleaning operations. That the Katy did not supply the cleaning tools is of little importance since the required tools were so simple. Although Souter paid appellee Hearson’s wages, this too is of little importance since the trial judge correctly determined that in these circumstances the car-cleaning contract which provided that Souter pay the car-cleaners’ wages appears as an attempt to avoid the Federal Employers’ Liability Act and is void under 45 U.S.C. § 55. After considering the elements of control, the trial judge ruled as a matter of law that Hearson was an employee of the Katy subject to their right of control. We agree with the trial judge that under the undisputed evidence in the case it is an inescapable conclusion that Hearson was" }, { "docid": "22855005", "title": "", "text": "the road “furnished the material to be pumped into the roadbed”; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job. Ibid. The railroad introduced evidence tending to controvert this. The Court then held that an issue for determination by the jury was presented. So it is here. Kelley was injured at the railroad’s loading-and-unloading ramp in San Francisco. He and others were unchaining new automobiles for unloading when he fell from the third level of the railroad car. He was hired, paid by, and could be discharged by the railroad’s wholly owned subsidiary. All the officers and directors of that subsidiary were officers or directors of the railroad. The subsidiary was the only company then having a contract with the railroad to unload cars at that ramp. Kelley had been employed at this particular job and at this site for eight years and was paid on an hourly basis. The unloading was the railroad’s responsibility pursuant to its contractual obligation to its shipper. The railroad supplied the necessary working area. The work performed by Kelley was unskilled. Railroad employees had the responsibility daily to check the safety of the cars and to make necessary repairs. There was evidence that the railroad exercised a degree of control over the unloading operation and that PMT employees performing this work frequently felt they had to heed the railroad supervisor’s command. All this, it seems to me, is enough to create an issue for the trier of fact, just as the Baker case illustrates and as it teaches. The trier could find that Kelley was doing work of a kind and in a way and under such supervision of the Southern Pacific as made him an employee of that railroad for purposes of the PELA. I feel the Court, ante, at 325 n. 6, gives undue emphasis to the District Court’s treatment of findings of fact proposed by the petitioner. Every actively practicing trial attorney knows that some judges readily adopt findings presented by counsel; that" }, { "docid": "3835921", "title": "", "text": "for the Katy in the early 1940’s. From time to time his position with the Katy changed, and eventually he became a car-cleaner. This was his job with the railroad when, in 1957, it became necessary for the railroad to lay off a large number of men. Appellee was among the men laid off because at that time the Katy ceased doing its own car-cleaning and contracted it out. The Katy then contracted with one John Souter to do the car-cleaning previously done by the Katy’s employees, including appellee, at the railroad’s Parsons, Kansas yards. The contract was for an indefinite term subject to termination only upon 30 days notice by either party. When Souter entered into the car-cleaning business in January of 1958, he hired laborers to clean the railroad’s cars and appellee Hearson was hired by Souter in February of that year. Having previously been a car-cleaner in the same yards, appellee needed no instruction and went right to work cleaning the cars just as he had before the Katy laid him off. The only difference to him was that he had to furnish his own bar and hammer whereas before the Katy had supplied them, and he was being paid by Souter. In addition to paying wages and concomitantly withholding taxes and Social Security, Souter provided his car-cleaning employees with brooms and shovels. There too was testimony that Souter also bought two trucks and a front-end loader which, among other jobs, he used to haul away debris accumulated after the railroad cars were cleaned. When the Katy did its own car-cleaning, it furnished all of the necessary tools to its employees. Other than these points there was no change in the car-cleaning operation as it existed prior to Souter’s contract with the Katy. Appellee’s duties as a car-cleaner remained the same insofar as he was to remove steel anchor plates, cut any bands hanging from the ceiling, pull nails from door posts, clean out trash and sweep out the cars. Appellee continued in this capacity as a car-cleaner until February 14, 1966, when he was injured while" }, { "docid": "10676976", "title": "", "text": "Car Works where he was employed. His theory was that the car works was the “alter ego, adjunct, subsidiary, agent or instrumentality” of the railroad, and that the railroad exercised such control over the car works as to require a determination that the railroad was his employer within the meaning of the FELA. The Court of Appeals sustained the holding of the trial court that the evidence failed as a matter of law to sustain plaintiff’s theory. That was in spite of the fact that the railroad owned the entire capital stock of the car works. It was noted that: (1) The railroad did not dictate the management of the car works. (2) A substantial part of the business of the car works was with companies other than the railroad. (3) The car works owned no rolling stock, and was not a common carrier by railroad within the contemplation of the FELA. (4) The car works performed no switching or transportation functions, or any other non-delegable duties of a railroad. “It was distinctively a manufacturer, performing no common carrier operations.” Based upon such considerations, it was held that the trial court was fully justified in determining that “the facts did not reveal such intimacy and inseparability of control as would lead to the conclusion that the Southern Railway Company and Lenoir Car Works were one and the same.” (278 F.2d, at 425). The facts in the Fawcett and Garrett cases were much stronger in favor of the plaintiff on this issue than they are in the present case. In ■ each of those cases, the plaintiff’s corporate employer was a wholly owned subsidiary of the defendant railroad; whereas, as has already been pointed out, the Railroad here owned no stock whatever in the Equipment Corporation. While the federal courts are alert to protect railroad employees from attempts to defeat their rights under the FELA, the cases above cited show that they will not arbitrarily disregard the separate entity of corporations. The Court of Appeals said in the Ruberiod case, supra: “. The doctrine of separate entity fills a useful purpose" }, { "docid": "13722641", "title": "", "text": "have “control or right to control” the actions of the worker. Id. at 325-26, 95 S.Ct. at 476-477. Our court held in Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982), that an employee of a railroad’s wholly-owned subsidiary trucking company fell within FELA coverage where it was shown that the railroad exerted “actual control and supervision over the performance of [the employee’s] services.” Id. at 199. In that case, Warren Vanskike had been injured while employed by Frisco Transportation Company. Similar to the arrangement in this case, St. Louis-San Francisco Railroad Company (Frisco Railroad) contracted with Frisco Transportation Company to load semi-trailers onto and offload them from railroad cars in piggy-back service. Vanskike, assisted by a co-worker, was loading piggy-back trailers on flatcars in Springfield, Missouri, when the fifth wheel hitch on a flatcar fell on Vanskike’s arm as he attempted to raise the hitch. Vanskike sued Frisco, the manufacturer of the railroad car, and the owner of the car. The jury awarded Vanskike $904,000. Although the case was remanded by our court on other grounds, we approved the district court’s instructions on FELA liability. In the present case, Bradsher has sought to establish that MoPac exercised actual control and supervision over his work. Bradsher sought to establish this matter of control through his deposition. Depositions of Vardaman, Bartlett and Partridge and MoPac’s answer refuted some of Bradsher’s contentions, but this refutation cannot serve as the basis for summary judgment. Indeed, the disagreement created by the contradictory statements, creates the very “genuine dispute of material fact” recognized in Rule 56(c) which must not exist if summary judgment is to be granted. M. P. Truck Summary Judgment The district court’s grant of summary judgment as to the trucking company under FELA was also erroneous. In the Kelley case, the Supreme Court recognized that if a second company could be shown to be a conventional common-law servant, the “control or right to control” test would be met. Kelley v. Southern Pacific, supra, 419 U.S. at 326, 95" }, { "docid": "14904844", "title": "", "text": "of the time. Each time UP Car No. 53805 was interchanged out Union Pacific collected a specific rental fee, a per diem which was set so as to give Union Pacific a fair return on its investment plus a mileage charge. There can be little doubt that the interchange program is a part of Union Pacific’s profit-oriented operation. Union Pacific is a commercial lessor and therefore subject to strict liability under Missouri law. III. FELA EMPLOYMENT Frisco makes several arguments related to its contention that Vanskike was not a statutory employee as defined by the FELA. Vanskike was employed by Frisco Transportation Company, a wholly-owned subsidiary of Frisco. Under the FELA the test of employee status is whether Frisco had control or the right to control Vanskike in the performance of his job. See Porter v. St. Louis-San Francisco Ry., 354 F.2d 840, 843 (5th Cir. 1966). Where the evidence of control is in dispute, the case should go to the jury. Kelley v. Southern Pacific Co., 419 U.S. 318, 331, 95 S.Ct. 472, 479, 42 L.Ed.2d 498 (1974). Frisco concedes the following facts: The piggyback ramp where Vanskike worked as well as the hard hats and tools that he used were owned by Frisco. Frisco employees were responsible for safety conditions. Each morning the Frisco supervisor, Mr. Charles Whitehead, gave Vanskike a list of cars to be loaded and unloaded. The loading and unloading of trailers was a part of the regular business of Frisco. Pursuant to a written contract, Frisco paid Frisco Transportation an hourly rate for the time spent on the ramp by tie-down men, including Vanskike. Frisco considers the following other facts to be countervailing: Vanskike punched a time clock at the Frisco Transportation terminal. He was paid by Frisco Transportation. Mr. Whitehead did not have the authority to discipline or fire Vanskike. Van-skike was a member of the Teamsters Union, rather than a railroad union. Both Vanskike and Frisco agree that the leading case is Kelley v. Southern Pacific Co. In Kelley, an employee of a wholly-owned subsidiary motor carrier sued a railroad under FELA" }, { "docid": "3835920", "title": "", "text": "HILL, Circuit Judge. This personal injury suit was brought by appellee Hearson against appellant railroad, known as the Katy, pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. The trial court determined as a matter of law that Hear-son was an employee of the Katy for purposes of a FELA action, and the questions of the employer’s negligence and of proximate cause were submitted to the jury. The jury awarded appellee Hearson $7,500 in damages for his injury. Appellant railroad appeals, asserting: 1) Appellee failed to prove by sufficient evidence any negligence on the part of the Katy railroad which caused appellee’s injury in whole or in part; and 2) the trial court erred in determining as a matter of law that Hearson was an employee of the Katy at the time of his injury, and that the railroad’s car-cleaning contract is void under 45 U.S.C. § 55 as an agreement the purpose of which is to exempt the railroad from FELA liability. The facts are these. Oscar Hearson began working for the Katy in the early 1940’s. From time to time his position with the Katy changed, and eventually he became a car-cleaner. This was his job with the railroad when, in 1957, it became necessary for the railroad to lay off a large number of men. Appellee was among the men laid off because at that time the Katy ceased doing its own car-cleaning and contracted it out. The Katy then contracted with one John Souter to do the car-cleaning previously done by the Katy’s employees, including appellee, at the railroad’s Parsons, Kansas yards. The contract was for an indefinite term subject to termination only upon 30 days notice by either party. When Souter entered into the car-cleaning business in January of 1958, he hired laborers to clean the railroad’s cars and appellee Hearson was hired by Souter in February of that year. Having previously been a car-cleaner in the same yards, appellee needed no instruction and went right to work cleaning the cars just as he had before the Katy laid him off." }, { "docid": "21387510", "title": "", "text": "Admittedly, his regular employment was with the Missouri Pacific Truck Lines, Inc., a wholly owned subsidiary of defendant. The trucking company has an entirely separate corporation with its own officers and board of directors. It has a contract with defendant under which it transports freight over the highways rather than by rail. At the time of his death (1) Fawcett was not hired by the railroad; (2) he was not on the railroad payroll; (3) he was not, in fact, paid by the railroad; (4) he was not subject to discharge by the railroad; (5) he was upon the railroad premises, but these premises were the subject of a lease agreement between the railroad and Fawcett’s employer; (6) he was not using the railroad’s tools; (7) the railroad furnished no material; (8) he was not doing work the railroad was required to do. His work consisted of loading and unloading which the consignee would otherwise do, in assisting in the transport of freight by highway transport for which the railroad was not licensed to do; (9) none of the railroad’s employees were present at the time Fawcett met his death; and (10) none of the railroad employees had any supervision of Fawcett or his supervisors. Plaintiff energetically urges that the jury should be permitted to decide whether or not Fawcett was in fact an employee of the railroad within the meaning of the Federal Employers’ Liability Act. Reliance is placed on Baker, et al v. Texas & Pacific Railway Co., 1959, 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756. However, the Supreme Court there did not foreclose the possibility of summary judgment in cases where “reasonable men could not reach differing conclusions on the issue.” By brief plaintiff argues that there are three possibilities of a workman coming under the coverage of the Federal Employers’ Liability Act: 1. The worker is hired by the railroad, on its payroll, and under the railroad’s direction and control. 2. The worker is hired by someone else other than the railroad, but was under the direction, supervision and/or control of the railroad. 3." }, { "docid": "22854962", "title": "", "text": "Mr. Justice Marshall delivered the opinion of the Court. Petitioner Eugene Kelley was seriously injured when he fell from the top of a tri-lével railroad car where he had been working. He sought recovery for his injuries from the respondent railroad under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60. Under the FELA, a covered railroad is liable for negligently causing the injury or death of any person “while he is employed” by the railroad. Although petitioner acknowledged that he was technically in the employ of a trucking company rather than the railroad, he contended that his work was sufficiently under the control of the railroad to bring him within the coverage of the FELA. The District Court agreed, but the Court of Appeals for the Ninth Circuit reversed, 486 F. 2d 1084 (1973), creating an apparent conflict with a previous decision of the Fourth Circuit, Smith v. Norfolk & Western R. Co., 407 F. 2d 601, cert. denied, 395 U. S. 979 (1969). We granted certiorari to resolve the conflict. 416 U. S. 935 (1974). We vacate the judgment and remand the case for further proceedings in the District Court. I At the time of his accident, petitioner had worked for the Pacific Motor Trucking Co. (PMT), a wholly owned subsidiary of the Southern Pacific Co., for about eight years PMT was engaged in various trucking enterprises, primarily in conjunction with the railroad operations of its parent company. Among PMT’s functions was transporting new automobiles from respondent’s San Francisco railyard to automobile dealers in the San Francisco area. As part of its contractual arrangement with the railroad, PMT would unload automobiles from Southern Pacific’s “tri-level” auto-carrying flatcars when they arrived in the yard. It was petitioner’s job to unhook the automobiles from their places on the railroad cars and to drive them into the yard for further transfer to PMT auto trailers. PMT maintained the unloading operation in the yard on a permanent basis. Although there were Southern Pacific employees in the area who would occasionally consult with PMT employees" }, { "docid": "3835932", "title": "", "text": "to these queries we must consider a number of factors, the foremost of which is whether the railroad has the power to direct, control and supervise appellee in the performance of his work at the time he was injured. But “right to control” itself is a function of other relevant factors, and in this respect the Supreme Court refers us to the Restatement, Agency 2d 220(2). A compilation of all the relevant factors that underlie the “right to control” include: (a) the extent of control which by agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer supplies the tools and the place of work; (f) the length of time for which the person is employed; (g) the method of payment; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether or not the principal is or is not in business. No one factor is decisive because each ease revolves around its peculiar facts. Hence it is but one factor that the Katy’s car-cleaning contract with Souter denominates Souter as an independent contractor. This characterization is not determinative. Moreover, this characterization plus the fact that Souter paid appellee Hearson and the fact that Hearson supplied his own bar and hammer and Souter supplied the broom are the only factors that show a strict independent contractor relationship rather than an employment relationship within the meaning of FELA. But the significance of these factors pales in the light of the other considerations. The record is replete with testimony to the effect that the railroad controlled the significant parts of the car-cleaning operation just as it did before it contracted with" }, { "docid": "22854992", "title": "", "text": "noted that a number of factors must be considered under Restatement (Second) of Agency § 220. Many Courts of Appeals have been confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K-T R. Co. v. Hearson, 422 F. 2d 1037 (CA10 1970), the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed the District Court ruling that reasonable men could not differ in the conclusion that the victim was in an employment relationship with the railroad for FELA purposes. In Schroeder v. Pennsylvania R. Co., 397 F. 2d 452 (CA7 1968), the deceased worker was nominally an employee of a trucking company which was under contract to perform certain pickup and delivery services for the railroad. Considering all the facts the Court of Appeals held that the trial judge had properly submitted to the jury the question of whether the deceased had been employed by the railroad for FELA purposes. Many more cases of a similar nature exist. See, e. g., Byrne v. Pennsylvania R. Co., 262 F. 2d 906 (CA3 1958); Cimorelli v. New York Central R. Co., 148 F. 2d 575 (CA6 1945). But see, e. g., Fawcett v. Missouri Pacific R. Co., 242 F. Supp. 675 (WD La. 1963), aff’d, 347 F. 2d 233 (CA5 1965). The case most clearly in point from another Court of Appeals is Smith v. Norfolk & Western R. Co., 407 F. 2d 501 (CA4 1969). There the injured worker was also employed by a company which unloaded autos from railroad ears, and, like the petitioner here, the worker fell to the ground from the top tier of one of the cars. The District Court granted the worker summary judgment, since it had no doubt that he was an employee of" }, { "docid": "11170873", "title": "", "text": "E. GRADY JOLLY, Circuit Judge: This case is an appeal from a grant of summary judgment against the appellant Selser on his FELA claim. Selser is employed as a truck driver by Pacific Motor Trucking Company, a wholly owned subsidiary of Southern Pacific Transportation Company which does business as a railroad. Because Selser failed to raise a genuine issue of material fact as to whether his employer, PMT, and PMT’s parent company, Southern, illegally intended to exempt Southern from FELA liability by creating their parent/subsidiary corporate structure, we affirm. I The appellant, Charles Selser, filed this action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, to recover for an injury he allegedly suffered during the course of his employment. He sued Southern Pacific Transportation Company (Southern) and its wholly owned subsidiary, Pacific Motor Trucking Company (PMT). Southern does business as a railroad, while PMT is a motor carrier, regulated by the Interstate Commerce Commission, that does not own, operate or manage any railroad equipment or facilities. Selser was, at all times relevant to this suit, an employee on PMT’s payroll. Because only railroads are subject to FELA liability, 45 U.S.C. § 51, Selser contended in the district court that PMT was the alter ego of Southern and also that he was a “joint” or borrowed servant or a “subservant” of Southern. PMT has its own board of directors and nobody has ever served as a management-level officer for both companies simultaneously. Uncontraverted deposition evidence indicates that only one officer has ever moved from one company to the other: PMT’s current president and chairman was formerly a Southern vice president. PMT formulates and implements its own strategies and policies and has its own sales, administrative and operating staff. It makes its own personnel decisions and maintains its own separate payroll and personnel records. Southern has no right to participate, and does not participate, in PMT’s day-to-day operations and management or in the establishment of PMT’s work procedures. Some of Southern’s and PMT’s functions are, however, performed by common personnel. The two companies share executive, engineering, communication, police, contract" }, { "docid": "3835933", "title": "", "text": "method of payment; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether or not the principal is or is not in business. No one factor is decisive because each ease revolves around its peculiar facts. Hence it is but one factor that the Katy’s car-cleaning contract with Souter denominates Souter as an independent contractor. This characterization is not determinative. Moreover, this characterization plus the fact that Souter paid appellee Hearson and the fact that Hearson supplied his own bar and hammer and Souter supplied the broom are the only factors that show a strict independent contractor relationship rather than an employment relationship within the meaning of FELA. But the significance of these factors pales in the light of the other considerations. The record is replete with testimony to the effect that the railroad controlled the significant parts of the car-cleaning operation just as it did before it contracted with Souter and just as it did after Souter terminated the contract shortly after appellee’s injury. The Katy’s yardmaster determined which cars appellee should clean and told him where they were. Souter himself never was around when appellee was working except in a few instances. It is not important that the railroad was not looking over appellee’s shoulder while he was working because appellee was concededly a very good worker who required no direction in doing such a relatively simple task. Although Katy did not seek to decide whether appellee should sweep from left-to-right or right-to-left, the Katy did reserve and exercise control over all the other details of the cleaning job. It was the railroad that determined whether the cars were cleaned properly and whether they should be sent back for re-cleaning. Testimony was that if the railroad’s yardmaster came over to appellee and gave him instructions or told him to sweep out the corners, appellee should and would have complied. It is of no moment that appellee had no set work schedule because the" }, { "docid": "14904845", "title": "", "text": "42 L.Ed.2d 498 (1974). Frisco concedes the following facts: The piggyback ramp where Vanskike worked as well as the hard hats and tools that he used were owned by Frisco. Frisco employees were responsible for safety conditions. Each morning the Frisco supervisor, Mr. Charles Whitehead, gave Vanskike a list of cars to be loaded and unloaded. The loading and unloading of trailers was a part of the regular business of Frisco. Pursuant to a written contract, Frisco paid Frisco Transportation an hourly rate for the time spent on the ramp by tie-down men, including Vanskike. Frisco considers the following other facts to be countervailing: Vanskike punched a time clock at the Frisco Transportation terminal. He was paid by Frisco Transportation. Mr. Whitehead did not have the authority to discipline or fire Vanskike. Van-skike was a member of the Teamsters Union, rather than a railroad union. Both Vanskike and Frisco agree that the leading case is Kelley v. Southern Pacific Co. In Kelley, an employee of a wholly-owned subsidiary motor carrier sued a railroad under FELA for injuries from falling off a railroad car where he had been working. The railroad owned the yards where the injury occurred. Kelley received workmen’s compensation payments from the motor carrier. Although Kelley acknowledged that he was technically employed by the trucking company rather than the railroad, he contended that his work was sufficiently under the control of the railroad to bring him within the FELA. The district court concluded that Kelley was covered on the ground that the motor carrier was an agent of the railroad. The court of appeals reversed because the district court had applied the wrong standard in establishing “employment” for FELA purposes. The Supreme Court vacated and remanded to the district court for findings on whether a master-servant relationship existed between Kelley and the railroad. The test laid down was whether the rail road controlled or had the right to control the subsidiary’s employees. 419 U.S. at 322-26, 95 S.Ct. at 475-477. The Court recognized three methods by which a plaintiff could establish “employment” with a railroad for FELA purposes" }, { "docid": "10676975", "title": "", "text": "to avoid the extension of a statute applicable to railroad employees in interstate transportation to cover those engaged in other occupations. Such an extension might well deprive a widow and children, as it would here, of their rights under a state compensation act where their right of recovery would not depend upon proof of negligence.” 242 F.Supp., pp. 677-678. In upholding the conclusion of the trial court that as a matter of law the truck line was not an alter ego of the railroad, the Court of Appeals said: “ . . . After careful consideration, we find ourselves in agreement with the opinion, findings, and conclusions of the district court. . . .” 347 F.2d, at 233. In the Garrett case, the plaintiff was a wheel moulder in the employ of Lenoir Car Works, a Tennessee corporation. He brought the action under the FELA against the Southern Railway Co. for damages on account of silicosis alleged to have been contracted from inhalation of silica dust which he claimed permeated the foundry of the Lenoir Car Works where he was employed. His theory was that the car works was the “alter ego, adjunct, subsidiary, agent or instrumentality” of the railroad, and that the railroad exercised such control over the car works as to require a determination that the railroad was his employer within the meaning of the FELA. The Court of Appeals sustained the holding of the trial court that the evidence failed as a matter of law to sustain plaintiff’s theory. That was in spite of the fact that the railroad owned the entire capital stock of the car works. It was noted that: (1) The railroad did not dictate the management of the car works. (2) A substantial part of the business of the car works was with companies other than the railroad. (3) The car works owned no rolling stock, and was not a common carrier by railroad within the contemplation of the FELA. (4) The car works performed no switching or transportation functions, or any other non-delegable duties of a railroad. “It was distinctively a manufacturer," }, { "docid": "21387511", "title": "", "text": "(9) none of the railroad’s employees were present at the time Fawcett met his death; and (10) none of the railroad employees had any supervision of Fawcett or his supervisors. Plaintiff energetically urges that the jury should be permitted to decide whether or not Fawcett was in fact an employee of the railroad within the meaning of the Federal Employers’ Liability Act. Reliance is placed on Baker, et al v. Texas & Pacific Railway Co., 1959, 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756. However, the Supreme Court there did not foreclose the possibility of summary judgment in cases where “reasonable men could not reach differing conclusions on the issue.” By brief plaintiff argues that there are three possibilities of a workman coming under the coverage of the Federal Employers’ Liability Act: 1. The worker is hired by the railroad, on its payroll, and under the railroad’s direction and control. 2. The worker is hired by someone else other than the railroad, but was under the direction, supervision and/or control of the railroad. 3. The worker is an employee of an adjunct or agent of the railroad. Admittedly, the first two situations are not involved. Fawcett was working for the trucking company, on its payroll, and was not under the direction, supervision or control of the railroad. There remains the third possibility, and there plaintiff relies primarily on Cimorelli, Roth, and Barlion. In those cases the contracts involved were cost plus and there was evidence that the railroads exercised some actual control and supervision of the performance of the services. Here, there was no control. The trucking company had an independent status and Fawcett was its bona fide employee. As we analyze it, plaintiff’s real contention is that because the trucking company is a wholly owned subsidiary of the defendant, it, the trucking company was the alter ego, adjunct, subsidiary agent, and instrumentality of the railroad. The jurisprudence as we read it is to the contrary. Atlantic Coastline R. R. Co. v. Shields, 5th Cir., 1955, 220 F.2d 242; Garrett v. Southern R. R. Co., 6th Cir., 1960, 278" } ]

[ { "docid": "15942970", "title": "", "text": "denial of certain discovery requests. This court has jurisdiction under 28 U.S.C. § 1295(a)(3) (2000). II. This court reviews without deference the Court of Federal Claims’ determination on its jurisdiction. Hanlin v. United States, 214 F.3d 1319, 1321 (Fed.Cir.2000); Shearin v. United States, 992 F.2d 1195, 1195 (Fed.Cir.1993). Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). This court upholds the Court of Federal Claims’ evidentiary rulings absent an abuse of discretion. Cf. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1197, 37 USPQ2d 1685, 1694 (Fed.Cir.1996) (stating that intrusions into a district court’s trial management are rarely appropriate on appeal.). The Tucker Act is the primary statute conferring jurisdiction on the Court of Federal Claims: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive depart ment, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2000). “The jurisdictional grant in the Tucker Act is limited by the requirement that judgments awarded by the Court of Federal Claims must be paid out of appropriated funds.” Furash & Co. v. United States, 252 F.3d 1336, 1339 (Fed.Cir.2001) (citing 28 U.S.C. § 2517 (2000)). Hence, the Tucker Act generally does not provide the Court of Federal Claims with jurisdiction over claims against NAFIs such as AAFES. El-Sheikh v. United States, 177 F.3d 1321, 1324 (Fed.Cir.1999) (“The general rule is that the Court of Federal Claims lacks jurisdiction to grant judgment against the United States on a claim against a NAFI because the United States has not assumed the financial obligations of those entities by appropriating funds to them.”). This requirement is known as the non-appropriated funds doctrine. A clear and express statute, however, may waive sovereign immunity. Cf. Miller v. French, 530 U.S. 327, 336, 120" } ]

[ { "docid": "5747579", "title": "", "text": "a case is a threshold matter, and, if no jurisdiction exists, the Court must order dismissal without proceeding further. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all undisputed facts in the plaintiffs complaint and draws all reasonable inferences in favor of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011). The plaintiff, however, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Id. In filing its takings claims in this court, Solid Rock Ministry invokes this court’s jurisdiction under the Tucker Act, which authorizes the Court of Federal Claims to render judgment upon “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a). Claims for damages under the Takings Clause of the Fifth Amendment are within this Court’s Tucker Act jurisdiction. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed.Cir.2008). Indeed, as noted above, the Court of Federal Claims possesses exclusive jurisdiction over such claims when damages exceed $10,000. § 1346(a)(2). The Court of Federal Claims’ Tucker Act jurisdiction is, however, limited by 28 U.S.C. § 1500. That statute provides that the Court of Federal Claims lacks subject matter jurisdiction “of any claim for or in respect to which the plaintiff ... has pending in any other court any suit or process against the United States____” Id. As the court of appeals has observed, two inquiries are required to determine the applicability of the jurisdictional bar contained in § 1500: “(1) whether there is an earlier-filed ‘suit or process’ pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are ‘for or in respect to’ the same elaim(s) asserted in the" }, { "docid": "11259687", "title": "", "text": "that must be determined at the outset. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “If the court finds that it lacks jurisdiction over the subject matter, it must dismiss the claim.” Matthews v. United States (Matthews), 72 Fed.Cl. 274, 278 (2006); see RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). A plaintiff bears the burden of proof to establish subject matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Russell v. United States (Russell), 78 Fed.Cl. 281, 285 (2007). Complaints filed by pro se plaintiffs “are generally held to ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Howard v. United States, 74 Fed.Cl. 676, 678 (2006) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). “This latitude, however, does not relieve a pro se plaintiff from meeting jurisdictional requirements.” Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (Table). “The Tucker Act is merely a jurisdictional grant ... and does not create a substantive right enforceable against the sovereign.” Matthews, 72 Fed.Cl. at 279 (citing United States v. Testan (Testan), 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). In order for this court to have jurisdiction, a “plaintiff must establish an independent substantive light to money damages from the United States.” Intersport Fashions W., Inc. v. United States (Intersport), 84 Fed.Cl. 454, 456 (2008) (citing Testan, 424 U.S. at 398, 96 S.Ct. 948); see Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (“[I]n order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.”). “If a trial court concludes that the particular statute simply is not money-mandating, then the court shall dismiss the claim for lack of subject matter jurisdiction under Rule 12(b)(1).” Adair v. United States, 497 F.3d 1244," }, { "docid": "19032657", "title": "", "text": "contemplates award on a ‘best value’ basis.” Id. at 503 (citing Galen, 369 F.3d at 1330). In determining whether an agency acted rationally, the court is particularly deferential to the agency’s technical evaluation. L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed.Cl. 656, 664 (2009); Fort Carson, 71 Fed.Cl. at 586. 2. The Plaintiff Must Establish Prejudice In order to prevail in a bid protest, the plaintiff must demonstrate both that an error occurred and that the error was prejudicial. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996); Alfa Laval Separation, Inc. v. United States (Alfa Laval), 175 F.3d 1365, 1367 (Fed.Cir.1999). “If the court finds that there is no error, there is no prejudice and the government’s decisions must be left undisturbed.” HomeSource Real Estate Asset Servs., Inc. v. United States, 94 Fed.Cl. 466, 478 (2010) (citing Alfa Laval, 175 F.3d at 1367 (requiring that a protestor establish “significant, prejudicial error” to prevail in a bid protest)). In the context of a post-award bid protest, “the plaintiff must demonstrate ‘substantial prejudice’ by showing that there was a ‘substantial chance’ it would have been awarded the contract but for the agency’s error.” Weeks Marine, Inc. v. United States, 79 Fed.Cl. 22, 35 (2007) (quoting Bannum, 404 F.3d at 1353), aff'd in relevant part, (Weeks Marine), 575 F.3d 1352 (Fed.Cir.2009). C. Rule 12(b)(1) Motion to Dismiss Rule 12(b)(1) governs dismissal of claims for lack of subject matter jurisdiction. Rules of the United States Court of Federal Claims (RCFC) 12(b)(1). Subject matter jurisdiction is a threshold matter that a court must determine at the outset of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). When a defendant challenges this court’s jurisdiction pursuant to RCFC 12(b)(1), the plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988)." }, { "docid": "19032658", "title": "", "text": "by showing that there was a ‘substantial chance’ it would have been awarded the contract but for the agency’s error.” Weeks Marine, Inc. v. United States, 79 Fed.Cl. 22, 35 (2007) (quoting Bannum, 404 F.3d at 1353), aff'd in relevant part, (Weeks Marine), 575 F.3d 1352 (Fed.Cir.2009). C. Rule 12(b)(1) Motion to Dismiss Rule 12(b)(1) governs dismissal of claims for lack of subject matter jurisdiction. Rules of the United States Court of Federal Claims (RCFC) 12(b)(1). Subject matter jurisdiction is a threshold matter that a court must determine at the outset of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). When a defendant challenges this court’s jurisdiction pursuant to RCFC 12(b)(1), the plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). A dismissal under RCFC 12(b)(1) “is warranted when, assuming the truth of all allegations, jurisdiction over the subject matter is lacking.” Ar-akaki v. United States, 62 Fed.Cl. 244, 247 (2004) (internal quotation marks omitted); see also Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). “When a party challenges the jurisdictional facts alleged in the complaint, the court may consider relevant evidence outside the pleadings to resolve the factual dispute.” Arakaki, 62 Fed.Cl. at 247 (citing Reynolds, 846 F.2d at 747; Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985)); see also 2 James Wm. Moore et al., Moore’s Federal Practice § 12.30[3] (3d ed. 2004) (“[Ujnlike a Rule 12(b)(6) dismissal, the court need not confine its evaluation to the face of the plead-ings____”). If a court determines that it does not have jurisdiction, it must dismiss the claim. See RCFC 12(h)(3). D. Motions for Judgment on the Administrative Record Rule 52.1 of the RCFC provides for judgment upon the administrative record. See RCFC 52.1. A motion for judgment upon the administrative" }, { "docid": "12157961", "title": "", "text": "§ 1491(a)(1), provides a general waiver of sovereign immunity that authorizes DMCA claims against the Government. The Tucker Act gives the CFC jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This court has explained that “because the Tucker Act itself does not create a substantive cause of action, ‘in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.’ ” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). “In the parlance of Tucker Act cases, that [statutory] source must be ‘money-mandating.’ ” Fisher, 402 F.3d at 1172. A statute is money-mandating if it “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948). Moreover, a statute can be interpreted as money-mandating if it grants the claimant a right to recover damages either “expressly or by implication.” Id. at 217 n. 16, 103 S.Ct. 2961 (citation omitted). Here, the DMCA cannot be fairly interpreted as containing either an express or implied right to recover money-damages from the Government. First, as discussed above, the substantive prohibitions of the DMCA refer to persons, not the Government. Second, the DMCA specifically grants jurisdiction over DMCA claims to federal district courts, not the CFC. See 17 U.S.C. § 1203(a) (providing that “[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation” (emphasis added)). This court has held that the CFC lacks jurisdiction to" }, { "docid": "2928881", "title": "", "text": "provide drainage service to [ Westlands] at rates established pursuant to the then-existing ratesetting policy for Irrigation Water.” Id. at A82 (2007 Interim Contract); see id. at A112 (2007 Interim Contract Ex. B (2007 rates and charges)). The 2007 Interim Contract was effective from January 1, 2008 to February 28, 2010. Id. at A56 (2007 Interim Contract); Compl. ¶ 41; Def.’s Mot. 6. 4. 2010 Interim Water Service Contract In 2010, the parties signed a second interim water service renewal contract. Compl. ¶ 45; Def.’s Mot. 6; see Def.’s App. A121-26 (Interim Renewal Contract Between the United States and Westlands Water District Providing for Project Water Service (2010 Interim Contract)). The 2010 Interim Contract incorporated the terms and conditions of the 2007 Interim Contract. See Def.’s App. A 122 (2010 Interim Contract); Compl. ¶ 46; Def.’s Mot. 6. It was effective from March 1, 2010 through February 29, 2012 and contained provisions for renewal if “a long-term renewal contract has not been executed with an effective commencement date of March 1, 2012.” Def.’s App. A123 2010 Interim Contract. II. Legal Standards A. Jurisdiction Subject matter jurisdiction is a threshold matter that a court must determine at the outset of a case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, the United States Court of Federal Claims (Court of Federal Claims) has jurisdiction over “any claim against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). A plaintiff must, therefore, “ ‘identify a separate source of substantive law that creates the right to money damages.’ ” Id. (quoting Fisher" }, { "docid": "4548523", "title": "", "text": "and mayor of Henderson, North Carolina. See Def.’s App. All (Pro Se Compl.). Invoking Title VI of the Civil Rights Act of 1964, plaintiff claims that the defendants discriminated against him as a foreign-born Muslim in dealings associated with the Schenectady, Meadowbrook and Henderson Properties. See id. at A12-A15. II. Legal Standards A Subject Matter Jurisdiction 1. The Tucker Act Subject matter jurisdiction is a threshold matter, which the court must determine at the outset of a ease. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The amended Complaint’s reliance on 28 U.S.C. § 1331 as a source of this court’s jurisdiction is in error. See Am. Compl. ¶ 3. Section 1331 states that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (2006). “The United States Court of Federal Claims ... is not a United States District Court and, therefore, does not have jurisdiction over claims arising under 28 U.S.C. § 1331.” Hall v. United States, 69 Fed.Cl. 51, 56 (2005); see Faulkner v. United States, 43 Fed.Cl. 54, 55 (1999) (“The Court of Federal Claims does not have federal question jurisdiction under 28 U.S.C. § 1331.”). It is the Tucker Act that establishes and limits the jurisdiction of this court. See 28 U.S.C. § 1491. The Tucker Act provides this court with jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). The Tucker Act provides this court with jurisdiction only over claims “against the United States.” Id. The amended Complaint, however, names HUD and the Attorney General of the United States as defendants. See Am. Compl. 1. Because both of plaintiffs named defendants are agents of the" }, { "docid": "2928882", "title": "", "text": "2010 Interim Contract. II. Legal Standards A. Jurisdiction Subject matter jurisdiction is a threshold matter that a court must determine at the outset of a case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, the United States Court of Federal Claims (Court of Federal Claims) has jurisdiction over “any claim against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). A plaintiff must, therefore, “ ‘identify a separate source of substantive law that creates the right to money damages.’ ” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). The court’s six-year statute of limitations, a condition on the Tucker Act’s waiver of sovereign immunity, further limits the court’s jurisdiction. See Martinez v. United States, 333 F.3d 1295, 1316 (Fed.Cir.2003) (en banc) (“It is well established that statutes of limitations for causes of action against the United States, being conditions on the waiver of sovereign immunity, are jurisdictional in nature.”); see also Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957) (stating that the United States Supreme Court “has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed”). Because the statute of limitations in this court is jurisdictional, Martinez, 333 F.3d at 1316, it cannot be waived, see John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134-35, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (noting the “absolute nature” of “jurisdictional” limitations statute for this court). The statute of limitations provides that claims" }, { "docid": "15247530", "title": "", "text": "ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Plaintiffs bear the burden of establishing subject matter jurisdiction, and the court may determine whether they have met this burden once they have had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003; Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3). Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491. The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon “the Constitution, or any Act of Congress or any regulation of an executive department, ... or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Plaintiffs have brought claims under the FLSA, 29 U.S.C. §§ 201-219. The CFC has jurisdiction over claims brought pursuant to the FLSA. Whalen v. United States, 80 Fed.Cl. 685, 687 (2008); see Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1364-65 (Fed.Cir.2005). B. Standard of Review The parties have cross-moved for summary judgment pursuant to RCFC 56. See Pis.’ Mot. 9-10; Def.’s Mot. 1. A motion for summary judgment may be granted only when “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1). A fact is material if it might significantly affect the outcome of the suit. Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)." }, { "docid": "20473837", "title": "", "text": "in the July 31, 1985 letter by stating that the Amarillo Post Office was not hiring new employees. Defendant filed a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1). Defendant makes two arguments: (1) that the Agreement is not money-mandating, therefore, this court does not have jurisdiction under the Tucker Act; and (2) this court does not have jurisdiction because plaintiffs claims are barred by the six-year statute of limitations set forth in the Tucker Act, 28 U.S.C. § 2501 (2006). We agree only with the second contention. DISCUSSION Jurisdiction is a threshold matter. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). If the court determines that it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(h)(3). In considering defendant’s motion to dismiss, we must assume factual allegations in the complaint are true and draw all reasonable inferences in plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Plaintiff, however, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). I. The court has jurisdiction over breach of the EEOC agreement The Tucker Act confers upon this court jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act “itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver [of sovereign immunity in] the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc portion). The separate source of substantive law must represent a “money-mandating constitutional provision, statute or regulation that has been violated, or an" }, { "docid": "19168874", "title": "", "text": "the Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). Therefore, a plaintiff must satisfy the court that “ ‘a separate source of substantive law ... creates the right to money damages.’ ” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). This court has no authority to hear tort claims against the United States because the Tucker Act expressly excludes such claims from the jurisdiction of the court. See Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (citing 28 U.S.C. § 1491(a) and Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)); see, e.g., Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 & n. 5 (Fed.Cir.2007) (holding that the plaintiff’s negligence claims sounded in tort and thus were beyond the jurisdiction of the United States Court of Federal Claims (Court of Federal Claims)); Moore v. Durango Jail, 77 Fed.Cl. 92, 96 (2007) (holding that the Court of Federal Claims did not have jurisdiction over the plaintiffs claim because the “plaintiffs claim of negligence sounds in tort”). The proper forum for federal tort claims is a United States district court. 28 U.S.C. § 1346(b)(1). This court also lacks “jurisdiction over claims arising under the Eighth Amendment, as the Eighth Amendment is not a money-mandating provision.” Trafny v. United States, 503 F.3d 1339, 1340 (Fed.Cir.2007) (per curiam) (internal quotation marks omitted). Further, the Court of Federal Claims has jurisdiction only over claims against the United States. 28 U.S.C. § 1491(a)(1); see United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (stating that the jurisdiction of the Court of Federal Claims “has been limited to money claims against the United States Government” since Congress created the court in 1855); RCFC 10(a) (stating that the title of the complaint must designate the United States as defendant); see also RCFC 4 rales committee note (2002)" }, { "docid": "4597453", "title": "", "text": "v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). The court must accept as true all undisputed allegations of fact made by the non-moving party and draw all reasonable inferences from those facts in the non-moving party’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (unpublished). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in" }, { "docid": "178352", "title": "", "text": "to transfer the third-party complaint in the Fund’s suit to this court, New Anchor and Tank voluntarily dismissed its third-party complaint in OEG’s action and pursued the instant action in this court. Id. MOTION TO DISMISS A. Subject Matter Jurisdiction The Tucker Act, 28 U.S.C. § 1491, grants this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liqui dated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). “Because the Tucker Act ‘does not confer any substantive rights upon a plaintiff,’ the plaintiff[s] also ‘must establish an independent substantive right to money damages from the United States — that is, a money-mandating source within a contract, regulation, statute or constitutional provision — in order for the case to proceed.’ ” Laughlin v. United States, 124 Fed.Cl. 374, 381 (2015) (quoting Volk v. United States, 111 Fed.Cl. 313, 323 (2013) (in turn citing United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed.Cir. 2008))), appeal docketed, No. 16-1627 (Fed. Cir. Feb. 24, 2016). The court must dismiss any claims for which it determines that it does not have subject matter jurisdiction. See RCFC 12(h)(3). New Anchor and Tank, as plaintiffs in this instance, must establish this court’s subject matter jurisdiction by a preponderance of the evidence before the court can proceed to the merits of them claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds, 846 F.2d at 747 (citing Scheuer v. Rhodes, 416 U.S." }, { "docid": "4597454", "title": "", "text": "RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). B. Transfer for Lack of Subject Matter Jurisdiction Under 28 U.S.C. § 1631, a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. See Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of North Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)). III. Discussion For the following reasons, all of plaintiffs claims are dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Additionally, the court finds that transfer of plaintiffs ease to another federal court is inappropriate. A Denial of Social Security Benefits Plaintiff attempts to invoke the court’s jurisdiction under the Tucker Act to appeal the SSA’s decision denying him Social Security benefits while he is incarcerated. See" }, { "docid": "19168872", "title": "", "text": "28 U.S.C. § 1491(a)(1) (2006), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and invoke the Eighth Amendment. See id. at 2 (citing 28 U.S.C. § 2674 and the Tucker Act in support of jurisdiction and stating that the “claim involves the 8th Amendment”). The United States (defendant or the government) has filed a motion to dismiss for lack of subject matter jurisdiction on the basis that “the Court does not possess jurisdiction to entertain claims that sound in tort.” Def.’s Mot. to Dismiss (defendant’s Motion or Def.’s Mot.), Dkt. No. 4, at 1. Now before the court are plaintiffs’ Complaint, filed December 10, 2012, and defendant’s Motion, filed February 8, 2013. Pursuant to the Rules of the United States Court of Federal Claims (RCFC), plaintiffs had thirty-one days to file a response to defendant’s Motion. See RCFC 7.2(b)(1) (allowing twenty-eight days to respond to a motion to dismiss); RCFC 6(d) (allowing three additional days when a motion to dismiss is served by mail). As of the date of this Opinion and Order, plaintiffs have failed to submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are dismissed. II. Legal Standards A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, this court has jurisdiction over “elaim[s] against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although" }, { "docid": "12157960", "title": "", "text": "DMCA refer to individual persons, not the Government. See 17 U.S.C. § 1201(a)(1)(A) (providing that “[n]o 'person shall circumvent a technological measure that effectively controls access to a work protected under this title” (emphasis added)); 17 U.S.C. § 1201(a)(1)(B) (providing that “[t]he prohibition contained in subparagraph (A) shall not apply to persons ...” (emphasis added)); 17 U.S.C. § 1202(a) (providing that “[n]o person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement ...” (emphasis added)); 17 U.S.C. § 1203(c)(1) (providing that “a person committing a violation of section 1201 or 1202 is liable for .... ” (emphasis added)). As the CFC correctly observed, to hold that the DMCA includes a waiver of sovereign immunity would “require construing the word ‘person’ to include the term ‘sovereign’.” Blueport Co. v. United States, 71 Fed.Cl. 768, 780 (2006). Blue-port’s construction of the DMCA thus violates the rule that a waiver of sovereign immunity must be express. See King, 395 U.S. at 4, 89 S.Ct. 1501. Blueport also argues that the Tucker Act, 28 U.S.C. § 1491(a)(1), provides a general waiver of sovereign immunity that authorizes DMCA claims against the Government. The Tucker Act gives the CFC jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This court has explained that “because the Tucker Act itself does not create a substantive cause of action, ‘in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.’ ” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). “In the parlance of Tucker Act cases, that [statutory] source must be ‘money-mandating.’ ” Fisher, 402 F.3d at 1172. A statute is" }, { "docid": "4548522", "title": "", "text": "motion to dismiss on October 11, 2011, finding that the Court of Federal Claims had exclusive jurisdiction over plaintiffs claims. Id. at 4 (citing, inter alia, 28 U.S.C. § 1491(a)(1) (2006)). The case was transferred to this court on January 4, 2012. See generally Notice. On February 8, 2012 plaintiff filed the original Complaint in this court, which included plaintiffs Schenectady, Flushing and Henderson Property claims. See generally Compl.; supra Parts I.A.1-3. On May 30, 2012 plaintiff filed the amended Complaint, which — in addition to those claims made in the original Complaint — includes plaintiffs Meadowbrook Property claim and the requests for money damages and declaratory judgment associated with the Meadowbrook Property claim. See Am. Compl. ¶¶ 28-33, E-F; supra Part I.A.4. The amended Complaint also includes a request that HUD “immediately release the line of credit” associated with the Henderson Property. Am. Compl. ¶ D. On March 9, 2012 plaintiff filed his pro se Complaint in the District Court, naming as defendants Secretary Shaun Donovan of HUD and the city council, city manager and mayor of Henderson, North Carolina. See Def.’s App. All (Pro Se Compl.). Invoking Title VI of the Civil Rights Act of 1964, plaintiff claims that the defendants discriminated against him as a foreign-born Muslim in dealings associated with the Schenectady, Meadowbrook and Henderson Properties. See id. at A12-A15. II. Legal Standards A Subject Matter Jurisdiction 1. The Tucker Act Subject matter jurisdiction is a threshold matter, which the court must determine at the outset of a ease. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The amended Complaint’s reliance on 28 U.S.C. § 1331 as a source of this court’s jurisdiction is in error. See Am. Compl. ¶ 3. Section 1331 states that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (2006). “The United States Court of Federal Claims ... is not a United" }, { "docid": "15247529", "title": "", "text": "to “compensate plaintiffs for pre- and post-shift activities plaintiffs are ‘suffered or permitted’ to work” in violation of 29 U.S.C. § 203(g) and § 207(a). Id. In Count IV, plaintiffs contend that defendant failed “to compensate plaintiffs for time spent bidding on work schedules off-duty” in violation of 29 U.S.C. § 203(g) and § 207(a). Id. Plaintiffs also claim that they are entitled to recover liquidated damages pursuant to 29 U.S.C. § 216(b). Pis.’ Mot. 40^48. Except for factual issues related to Count III, the disputed issues are legal in nature. For the following reasons: (1) defendant’s Motion is GRANTED-IN-PART and DENIED-IN-PART and plaintiffs’ Motion is GRANTED-IN-PART and DENIED-IN-PART with respect to Count I; (2) defendant and plaintiffs’ Motions are DENIED with respect to Count II; (3) defendant and plaintiffs’ Motions are DENIED with respect to Count III; and (4) defendant’s Motion is GRANTED and plaintiffs’ Motion is DENIED with respect to Count IV. II. Legal Standards A. Subject Matter Jurisdiction Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Plaintiffs bear the burden of establishing subject matter jurisdiction, and the court may determine whether they have met this burden once they have had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003; Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3). Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491. The Tucker Act provides that the" }, { "docid": "19366836", "title": "", "text": "Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Star, Inc., 484 F.3d 1359, 1365 (Fed.Cir. 2007). Plaintiff bears the burden of establishing subject matter jurisdiction, and the court may determine whether he has met this burden once he has had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003; Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3). Complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Bernard v. United States, 59 Fed.Cl. 497, 499, ajfd, 98 Fed.Appx. 860 (Fed.Cir. 2004) (unpublished). Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491 (2006). The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon “any Act of Congress or any regulation of an executive department ... or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). However, the Tucker Act “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). In order to establish subject matter jurisdiction in the CFC, a plaintiff must point to a relevant money-mandating statute, regulation or Constitutional provision. Id. 2. Veteran Benefit Determinations Title 38 of the United States Code sets forth a comprehensive adjudicatory scheme for maldng veteran benefit determinations. Under this" }, { "docid": "19168873", "title": "", "text": "plaintiffs have failed to submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are dismissed. II. Legal Standards A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, this court has jurisdiction over “elaim[s] against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although the Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). Therefore, a plaintiff must satisfy the court that “ ‘a separate source of substantive law ... creates the right to money damages.’ ” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). This court has no authority to hear tort claims against the United States because the Tucker Act expressly excludes such claims from the jurisdiction of the court. See Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (citing 28 U.S.C. § 1491(a) and Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)); see, e.g., Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 & n. 5 (Fed.Cir.2007) (holding that the plaintiff’s negligence claims sounded in tort and thus were beyond the jurisdiction of the United States Court of Federal Claims (Court of" } ]

[ { "docid": "22161981", "title": "", "text": "the district court’s order. A We review de novo a dismissal by judgment on the pleadings under Rule 12(c). Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir.1985). All allegations of fact by the party opposing the motion are accepted as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984). A dismissal on the pleadings for failure to state a claim is proper only if “the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1368, at 690 (1969)); see also General Cinema Corp. v. Buena Vista Distrib., 681 F.2d 594, 597 (9th Cir.1982). In this case Rule 12(c) was used to raise the defense of failure to state a claim. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980). As a result, the motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6): this court may affirm the district court’s dismissal “only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir.1987). Not only must the court accept all material allegations in the complaint as true, but the complaint must be construed, and all doubts resolved, in the light most favorable to the plaintiff. NL Indus,, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834-35 (9th Cir.1980). Nonetheless, conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim. McCarthy v. Mayo, 827 F.2d 1310, 1317 (9th Cir.1987). B In their AFA complaint appellants sued under sections 1 and 2 of the Sherman" } ]

[ { "docid": "20860698", "title": "", "text": "271 and 281, based on belief that Defendant “markets, distributes, advertises, uses, offers for sale, sells and imports into the United States the Pearl Hair Remover, which infringes the '034 Patent.” Amended Complaint (“Amend. Compl.”) ¶ 5. Plaintiffs Amended Complaint also claims that Defendant violated Section 43(a) of the Latham Act (15 U.S.C. § 1125(a)) by engaging in false advertising, trade dress infringement, trademark infringement, and unfair competition. Id. II. Procedural History Following the filing of this action on June 3, 2013, Plaintiff filed an Amended Complaint on June 24, 2013, in which it added claims for false advertising, trade dress infringement, and unfair competition to its claims of patent infringement. Via-tek filed an Answer and Counterclaims on September 23, 2013. Dock. No. 22. An Amended Answer with Counterclaims was filed on September 29, 2013. Dock. No. 24. Viatek filed a Second Amended Answer and Counterclaims on October 1, 2013. Dock. No. 26. In its Second Amended Answer and Counterclaim (“Sec. Amend. Ans. & Counterclaims”), Viatek asserts twenty-one affirmative 'defenses and seven counterclaims against Counterclaim Defendants. The present motion to strike addresses three affirmative defenses (the Sixth, for inequitable conduct, the Seventh, for violation of the best mode requirement, and the Twenty-First, for unclean hands) and four counterclaims (the Second, for declaratory judgment of non-infringment and invalidity of the '445 patent, the Third, for violation of Section 2 of the Sherman Act, the Fourth, for unfair competition, and the Fifth, for tortious interference), and seeks to dismiss PhotoMe-dex, Inc. from the action. III. Legal Standards a. Motion to Strike Affirmative Defenses “The court may strike'from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). In order to prevail on a motion to strike affirmative defenses under Fed.R.Civ.P. 12(f), plaintiff must satisfy the following three-part test: “(1) there must' be no question of fact that might allow the defense to succeed; (2) there must be no substantial question of law that iiiight allow the defense to succeed; and (3) the plaintiff-must be prejudiced by the inclusion of the defense.” Coach, Inc. v. Kmart Corps., 756" }, { "docid": "23623693", "title": "", "text": "be likely to assume that the identified services are in some way associated with another service-provider.”). Thus, we cannot affirm the district court’s Rule 12(c) ruling on the ground that plain tiff failed to state a claim for trademark infringement because plaintiff alleged a set of facts that, if proved, would show a likelihood of confusion. See Bryson, 621 F.2d at 559 (concluding that “judgment on the pleadings would not be appropriate ... because the complaint states a cause of action in contract”). We note that defendants’ denial of plaintiff’s allegations does not warrant a different conclusion. That denial, of course, simply raised likelihood of confusion as a material issue of fact that could not, in the context of a Rule 12(c) motion, be resolved in defendants’ favor. See General Conference Corp. v. Seventh-Day Adventist Church, 887 F.2d 228, 231 (9th Cir.1989) (defendant’s factual assertions denying likelihood of confusion created a question of material fact precluding judgment on the pleadings), cert. denied, — U.S. -, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990); see also Hal Roach Studios v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir.1990) (stating that “judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue”). Consequently, unless defendants’ fair use defense entitled them to judgment as a matter of law, the district court erred by granting judgment on the pleadings. Jablonski, 863 F.2d at 290-91. B. Fair Use Plaintiff asserts that even if a fair use defense can justify granting judgment on the pleadings, the pleadings here raised material issues of fact as to whether defendants used the words “current contents” fairly and in good faith. Therefore, plaintiff argues that the defendants were not entitled to judgment as a matter of law, and thus judgment on the pleadings was improperly granted by the district court. To demonstrate fair use, defendants were required to prove that they (1) used “current contents” merely to describe their product; (2) did not use “current contents” as a trademark; and (3) used “current contents” in good faith. See Munters Corp. v. Matsui" }, { "docid": "13987936", "title": "", "text": "1542, 1550 (9th Cir.1989). In reviewing a motion under Rule 12(c), the court must assume that the facts alleged by the nonmoving party are true and must construe all inferences drawn from those facts in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). The court need not assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. 1 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). II. Motion for Leave to Amend A party is entitled to amend its pleadings once as a matter of course before a responsive pleading is served. See Fed.R.Civ.P. 15(a). After a response has been filed, a party may amend its pleadings “only by leave of court or by written consent of the adverse party.” Id. Federal Rule of Civil Procedure 15(a) provides for the amendment of pleadings by leave of court and notes that such leave “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This rule is applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003). However, the grant or denial of a motion to amend is committed to the discretion of the district court, and the court may decline to grant leave where there is “any apparent or declared reason” for doing so. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir.1991). The Ninth Circuit has interpreted Foman as identifying “four factors relevant to whether a motion for leave to amend pleadings should be denied: undue delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party.” United States v. Webb, 655 F.2d 977, 980 (9th Cir.1981). The enumerated factors are not of equal weight. Id. (citing Howey v. United States, 481" }, { "docid": "20860699", "title": "", "text": "Defendants. The present motion to strike addresses three affirmative defenses (the Sixth, for inequitable conduct, the Seventh, for violation of the best mode requirement, and the Twenty-First, for unclean hands) and four counterclaims (the Second, for declaratory judgment of non-infringment and invalidity of the '445 patent, the Third, for violation of Section 2 of the Sherman Act, the Fourth, for unfair competition, and the Fifth, for tortious interference), and seeks to dismiss PhotoMe-dex, Inc. from the action. III. Legal Standards a. Motion to Strike Affirmative Defenses “The court may strike'from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). In order to prevail on a motion to strike affirmative defenses under Fed.R.Civ.P. 12(f), plaintiff must satisfy the following three-part test: “(1) there must' be no question of fact that might allow the defense to succeed; (2) there must be no substantial question of law that iiiight allow the defense to succeed; and (3) the plaintiff-must be prejudiced by the inclusion of the defense.” Coach, Inc. v. Kmart Corps., 756 F.Supp.2d 421, 425 (S.D.N.Y. 2010) (citation omitted). “In- assessing the sufficiency of an affirmative defense, the Court ‘should construe the pleadings liberally to give the defendant a full opportunity to support its claims at trial, after full discovery has been made.’ ” Cartier Int’l AG v. Motion in Time, Inc., No. 12 Civ. 8216(JMF), 2013 WL 1386975, at *3 (S.D.N.Y.2013) (quoting Coach, Inc., 756 F.Supp.2d at 425). “Increased time and expense of trial may constitute sufficient prejudice to warrant striking an affirmative defense.” Coach, Inc., 756 F.Supp.2d at 426. b. Motion to Dismiss Counterclaim “A motion to dismiss a counterclaim is evaluated under the same standard as a motion to dismiss a complaint.” Revonate Mfg., LLC v. Acer Am. Corp., No. 12 Civ. 6017(KBF), 2013 WL 342922, at *2 (S.D.N.Y. Jan. 18, 2013) (citation omitted). On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678," }, { "docid": "14188456", "title": "", "text": "is such a common occurrence that the telecom industry simply refers to it as a name ‘dip.’ ” Id. ¶ 20 (emphasis added). Greenflight released its app on the Apple App Store in the summer of 2013. A year later, Whitepages introduced version 1.0 of its “ID by Whitepages” app. Greenf-light investigated the Whitepages app and determined that, unlike previous versions, it appeared to utilize new data sources— specifically, CNAM databases. Believing Whitepages was querying a CNAM database, and thus infringing the ’698 patent, Greenflight initiated Apple’s dispute resolution process. This led Whitepages to file a complaint for a declaratory judgment of non-infringement of the ’698 patent on January 11, 2016. Three days later, Greenflight sued Whitepages and another company — True Software Scandinavia AB — in the United States District Court for the Southern District of Florida. Greenflight soon stipulated to dismissal of Whitepages and its CEO from the Florida action, then asserted counterclaims here for infringement of claim 1 and contributory infringement of claims 1 and 5 of the ’698 patent. Whitep-ages answered the counterclaims on April 21, 2016. It subsequently filed the instant motion for judgment on the pleadings. III. LEGAL STANDARD Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” A motion for judgment on the pleadings is “functionally identical” to a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.1989). “A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, [a] party is entitled to judgment as a matter of law.” Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir.2011) (quoting Dunlap v. Credit Protection Ass’n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir.2005)); see also Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir.2004) (explaining that all material allegations in the complaint are accepted as true and construed in the light most favorable to the non-moving" }, { "docid": "14918143", "title": "", "text": "constitute a “boycott” as that term has been defined by the Supreme Court in the .context of § 3(b) of the McCarran-Ferguson Act, 15 U.S.C. § 1013(b). II. Judgment on the pleadings is appropriate when “no issues of material fact exist, and the movant is entitled to judgment as a matter of law.” Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996) (citing Fed.R.Civ.P. 12(e)). The complaint may not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2917, 125 L.Ed.2d 612 (1993). “When reviewing a judgment on the pleadings, we accept the facts in the.complaint as true and view them in the light most favorable to the nonmoving party.” Ortega, 85 F.3d at 1524 (citing Swerdloff v. Miami Nat’l Bank, 584 F.2d 54, 57 (5th Cir.1978)); see also Hartford, 509 U.S. at 770, 113 S.Ct. at 2895; General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). Accordingly, as a decision on the merits, we review a judgment on the pleadings de novo. Ortega, 85 F.3d at 1524-25 (citing General Conference Corp., 887 F.2d at 230). III. As stated above, the McCarran-Ferguson Act exempts conduct from the federal antitrust laws if it is “the business of insurance” and is “regulated by state law.” 15 U.S.C. § 1012(b). However, under Section 3(b), the exemption does not apply if the challenged conduct involves an act or agreement of “boycott, coercion, or intimidation.” 15 U.S.C. § 1013(b). A. The Business of Insurance and the McCarran-Ferguson Act The district court concluded that the ap-pellees’ conduct as alleged in the complaint is the “business of insurance.” Slagle v. ITT Hartford Ins. Group, 904 F.Supp. 1346, 1349 (N.D.Fla.1995). According to the district court, the appellees’ conduct pertains to" }, { "docid": "15122627", "title": "", "text": "consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir.1989). Material which is properly submitted as part of the complaint may, however, be considered. Id. In addition, documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Finally, the Court may take judicial notice of matters of public record. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986). In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint and construe them in the light most favorable to the nonmoving party. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Factual allegations may be disregarded, however, if contradicted by documents to which the court may properly refer. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992). B. Analysis De Rooy argues that Nicosia’s complaint should be dismissed (1) because, as a matter of law, the allegedly defamatory statements are opinions protected by the First Amendment, and (2) because Nicosia has failed to sufficiently allege actual malice. Nicosia responds that the challenged statements are unprotected assertions of fact, or at least imply assertions of fact, and that he has sufficiently pled actual malice. 1. Opinion or Fact Whether a statement is an assertion of fact or opinion is a question of law for the court. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th Cir.1989); Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 260, 228 Cal.Rptr. 206, 209 (1986); Gaeta v. Delta Airlines, Inc., 1997 WL 655953, at *4 (N.D.Cal.1997). Pure opinions — “those that do not imply facts capable of being proved true or false” — are protected by the First Amendment. Partington v. Bugliosi, 56 F.3d 1147, 1153 fn. 10" }, { "docid": "20269318", "title": "", "text": "material.” (R. 17-1, Zurn’s Answer, Counterclaims and Affirmative Defenses, p. 12, ¶¶ 27, 31.) Because Zurn has sufficiently alleged materiality under the Federal Circuit’s case law governing inequitable conduct, the Court denies Sloan’s 12(b)(6) motion to dismiss Count III of Zurn’s counterclaim. III. Motion to Strike Zurn’s Affirmative Defenses Sloan next requests the Court to strike Zurris First, Second, Third, Sixth and Seventh affirmative defenses. The Court will address each of the contested affirmative defenses in turn. Zurris first and sixth affirmative defenses are insufficiently pleaded. Zurn’s first affirmative defense alleges estoppel in a single sentence: “Zurn has detrimentally relied upon Sloan’s acquiescence with respect to Zurn acts alleged to infringe the '729 Patent Application and the '635 Patent and Sloan is therefore estopped from seeking the relief requested in Sloan’s Complaint.” (R. 17-1, Zurris Answer, Counterclaims and Affirmative Defenses, p. 5, ¶ 54.) Zurn’s sixth affirmative defense alleges that “[u]pon information and belief, Plaintiff is barred in whole or in part from asserting the '635 patent.” Id. at ¶ 61. Because they are subject to federal pleading requirements affirmative defenses “must set forth a ‘short and plain statement’ of all the material elements of the defense asserted; bare legal conclusions are not sufficient.” Heller, 883 F.2d at 1294; Fed.R.Civ.P. 8(a). Zurn has failed to adequately plead estoppel or misuse/unclean hands in accordance with Rule 8 because Zurn offers no allegations in support thereof and has not provided any minimal specifics in its pleading to provide Sloan with notice of how and in what way its defenses arise. See, e.g., Davis, 592 F.Supp.2d at 1059 (N.D.Ill.2009) (motion to strike affirmative defenses granted where “affirmative defenses fail to point to specific allegations in the pleadings that satisfy the essential elements of either defense”); see also Bartashnik v. Bridgeview Bancorp, Inc., 2005 WL 3470315, 2005 U.S. Dist. LEXIS 33657 (N.D.Ill. Dec. 15, 2005) (“waiver, estoppel and laches ‘are equitable defenses that must be pled with the specific elements required to establish the defense’ ”) (internal citations omitted). Zurris second affirmative defense alleges that: “Zurn did not have actual notice of the '729" }, { "docid": "20436593", "title": "", "text": "8-10.) On October 26, 2011, Islands answered Kohler’s complaint, denying all factual allegations and raising thirty-one affirmative defenses. (Answer [Doe. 3].) Twenty-two days later, Kohler filed his present motion to strike all of Islands’s affirmative defenses or, in the alternative, for partial summary judgment on the same affirmative defenses. (See Pl.’s Mot.) Islands opposed Kohler’s motion, and voluntarily withdrew thirteen of its affirmative defenses, including numbers 13, 14, 16, 18, 20, 21, 22, 23, 25, 26, 27, 29, and 31. On December 12, 2011, Kohler replied. (PL’s Reply [Doc. 12].) II. Legal Standards A. Motion to Strike Under Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “[T] he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). At the same time, 12(f) motions are “generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D.Cal.2003). Unless it would prejudice the opposing party, courts freely grant leave to amend stricken pleadings. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir.1979); see also Fed.R.Civ.P. 15(a)(2). An affirmative defense may be insufficient as a matter of pleading or as a matter of law. Sec. People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592, at *2 (N.D.Cal.2005). “The key to determining the sufficiency of pleading an affirmative defense is whether it gives the plaintiff fair notice of the defense.” Wyshak, 607 F.2d at 827 (citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (emphasis added); Simmons v. Navajo, 609 F.3d 1011, 1023 (9th Cir.2010); Schutte & Koerting, Inc. v. Swett & Crawford, 298 Fed.Appx. 613, 615 (9th Cir.2008). Fair notice generally requires that the defendant state the nature and grounds for the affirmative" }, { "docid": "23178421", "title": "", "text": "question upon a motion for new trial. The defendants filed a notice of appeal on April 7, 1988. The district court then entered an order to show cause why defendants should not be held in contempt, and set a hearing for May 9, 1988. The district court held both Marik and the Congregational Church in contempt, set a fine of $500 per day until compliance against both defendants, individually and collectively, and ordered that a warrant issue for Marik’s arrest until full compliance with the injunction. The court also awarded plaintiff $13,929.21 for attorneys’ fees and costs incurred in pursuing the contempt order. DISCUSSION A judgment on the pleadings is a decision on the merits, and we review it de novo. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). Judgment on the pleadings is proper when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 12(c). All allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party. McGlinchy, 845 F.2d at 810. As a result, a plaintiff is not entitled to judgment on the pleadings when the answer raises issues of fact that, if proved, would defeat recovery. Similarly, if the defendant raises an affirmative defense in his answer it will usually bar judgment on the pleadings. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368 (1969). The defendants filed two pleadings that the district court construed as “Answers.” If we construe these “answers” liberally because Marik had submitted them pro se, see United States v. Ten Thousand Dollars ($10,000) in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir.1988), they set forth two points that either raise questions of material fact, or present affirmative defenses. In the same permissive mode, the second “answer” filed after the motion for judgment on the pleadings, may be construed as an opposition to the motion. For these reasons, judgment on the pleadings was improper. A.Is “Seventh Day Adventist” a Generic" }, { "docid": "6598592", "title": "", "text": "dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the'nonmoving party.”). The court’s function, however, is not to make credibility determinations, Anderson, All U.S. at 249,106 S.Ct. at 2510-11, and the inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631. II. Judgment On The Pleadings A motion for judgment on the pleadings is proper “when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Fed.R.Civ.P. 12(c); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1990). In reviewing a motion under Rule 12(c), the court must assume that the facts alleged by the nonmoving party are true and must construe all inferences drawn from those facts in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert, denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). The court need not assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert, denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). DISCUSSION The first issue before the court is the extent to which skate damages law is applicable to an EMTALA personal injury claim. In contention is the application of the MI-CRA $250,000 damages cap on claims against health care providers. This matter is one of first impression in this Circuit. As such, the court will determine the more abstract question of the nature and extent of EMTALA incorporation of state damages law, and then consider whether the specific state damages law—in this case, MICRA—applies to an EMTALA claim. This opinion is supported by the small but consistent body of case law on this issue" }, { "docid": "6435931", "title": "", "text": "stage of the plaintiff’s case, the trial court “must take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.1988), cert. denied — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989) (quoting Estate of Bailey v. County of York, 768 F.2d 503 (3d Cir.1985)). The standard for dismissal of a counterclaim is the same as that for dismissal of a complaint. Thus, dismissal of the Commonwealth’s counterclaim would only be proper if, taking all allegations in the counterclaim as true and viewing all reasonable inferences in the light most favorable to the Commonwealth, the court finds that the counterclaim could not prevail under any set of facts that could be proved. Motion to Strike Union Gas has moved to strike the Commonwealth’s third, fourth, fifth, seventh and eighth affirmative defenses pursuant to Fed.R.Civ.P. 12(f). Fed.R.Civ.P. 12(f) provides, in pertinent part: (f) Motion to Strike. Upon motion made by a party ... the court may order stricken from the pleading any insufficient defense. Motions to strike are generally viewed with disfavor. See American Standard Life & Accident Insurance Co. v. U.R.L., Inc., 701 F.Supp. 527, 531 (M.D.Pa.1988). If there are either questions of fact or disputed question of law, the motion to strike must be denied. For the plaintiff to succeed on this motion, the Court must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed. Smith, Kline & French Laboratories v. A.H. Robins Co., 61 F.R.D. 24, 33 (E.D.Pa.1973), citing Carter-Wallace, Inc. v. Riverton Laboratories, Inc., 47 F.R.D. 366 (S.D.N.Y.1969). However, a motion to strike under Rule 12(f) is the “primary procedure” for objecting to an insufficient affirmative defense. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1380 at 782 (1969). Thus, even though motions to strike are often" }, { "docid": "10951147", "title": "", "text": "genuine issue of fact. Accordingly, the court does not find that Netcom’s use was fair as a matter of law. C. Conclusion The court finds that plaintiffs have raised a genuine issue of fact regarding whether Net-com should have known that Erlich was infringing their copyrights after receiving a letter from plaintiffs, whether Netcom substantially participated in the infringement, and whether Netcom has a valid fair use defense. Accordingly, Netcom is not entitled to summary judgment on plaintiffs’ claim of contributory copyright infringement. However, plaintiffs’ claims of direct and vicarious infringement fail. II. Klemeskud’s Motion for Judgment on the Pleadings A. Standards for Judgment on the Pleadings A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is directed at the legal sufficiency of a party’s allegations. A judgment on the pleadings is proper when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law. General Conference Corp. v. Seventh Day Adventist Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). In ruling on a motion for judgment on the pleadings, district courts must accept all material allegations of fact alleged in the complaint as true, and resolve all doubts in favor of the non-moving party. Id. The court need not accept as true eonclusory allegations or legal characterizations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Materials submitted with the complaint may be considered. Hal Roach Studios, 896 F.2d at 1555. AH affirmative defenses must clearly appear on the face of the complaint. McCalden v. California Library Ass’n, 955 F.2d 1214, 1219 (9th Cir.1990). B. Copyright Infringement 1. Direct Infringement First, plaintiffs allege that Klemesrud directly infringed their copyrights by “reproduc[ing] and publish[ing] plaintiffs’ works.” FAC ¶35. The complaint alleges that “Erlich ... caused copies of [plaintiffs’ works] to be published, without authorization, on the BBS computer maintained by Klemesrud” and that “Klemesrud’s BBS computer, after receiving" }, { "docid": "20436622", "title": "", "text": "no basis for an assertion of unclean hands, and therefore the Court STRIKES Islands’ twenty-eighth affirmative defense WITH LEAVE TO AMEND, and DENIES Kohler’s motion for partial summary judgment on the same. 16. Thirtieth Affirmative Defense — Mootness Finally, in its thirtieth affirmative defense, Islands alleges that “Plaintiffs claims are barred under the doctrine of mootness.” (Answer 10.) At this point, it should come as no surprise that Islands’ mootness defense fails to provide fair notice to Kohler. Islands simply provides no indication of why Kohler’s claims are moot. Accordingly, the Court STRIKES Islands’ thirtieth affirmative defense WITH LEAVE TO AMEND. And, because Kohler does not attack the legal sufficiency of Islands’ mootness defense, the Court DENIES his motion for partial summary judgment. V. Conclusion For these reasons, the Court STRIKES Islands’ first, second, third, fourth, fifth, sixth, seventh, ninth, fifteenth, seventeenth, nineteenth, twenty-eighth, and thirtieth affirmative defenses WITH LEAVE TO AMEND. The Court STRIKES Islands’ twelfth affirmative defense WITHOUT LEAVE TO AMEND. And the Court DENIES Kohler’s motion for partial summary judgment. Islands must file its amended answer no later than March 8, 2012. IT IS SO ORDERED. . These defenses are (13) estoppel; (14) waiver; (16) preemption; (18) applicability of California Civil Code § 51; (20) legitimate business justification; (21) no damages; (22) good faith; (23) comparative negligence; (25) lack of notice; (26) reliance on architects; (27) laches; (29) all defenses under Federal Rules of Civil Procedure 8 and 12; and (31) reservation of defenses. (See Answer: Defs.’Opp’n 2.) . See Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221, at *2-3 (N.D.Cal.2012) (explaining that a majority of district courts have extended Twombly and Iqbal to affirmative defense pleading); Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1171-73 (N.D.Cal.2010); Anticancer Inc. v. Xenogen Corp., 248 F.R.D. 278, 282 (S.D.Cal. 2007). . See J & J Sports Prods., Inc. v. Scace, 2011 WL 2132723, at *1 (S.D.Cal.2011); see also Joe Hand Promotions, Inc. v. Estradda, 2011 WL 2413257, at *5 (E.D.Cal.2011); Holdbrook v. SAIA Motor Freight Line, LLC, 2010 WL 865380, at *2 (D.Colo.2010);" }, { "docid": "20269301", "title": "", "text": "must withstand a Rule 12(b) (6) challenge — in other words, if it is impossible for defendants to prove a set of facts in support of the affirmative defense that would defeat the complaint, the matter must be stricken as legally insufficient.” Davis, 592 F.Supp.2d at 1058 (citing (Heller, 883 F.2d at 1294)). Regarding the first part of the test, “the basic concept of an affirmative defense is an admission of the facts alleged in the complaint, coupled with the assertion of some other reason defendant is not liable.” ADM Investor Servs., Inc. v. Collins, No. 05 C 1823, 2006 WL 224095, * 2 (N.D.Ill. Jan. 26, 2006) (quoting Instituto Nacional de Comercialization Agricola v. Cont’l Ill. Nat’l Bank and Trust Co., 576 F.Supp. 985, 988 (N.D.Ill.1983)) (emphasis in original). Federal Rule of Civil Procedure 8 also contains a list of affirmative defenses that a Defendant may plead. Fed.R.Civ.P. 8(c)(1). ANALYSIS In its motion to dismiss, Sloan requests that the Court: (i) dismiss counts I and II of Zurn’s counterclaim with respect to the unasserted claims of Patent '635 pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, (ii) dismiss Count III of Zurn’s counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6), and (iii) strike Zurn’s First, Second, Third, Sixth and Seventh affirmative defenses. For the following reasons, the Court grants in part and denies in part Zurn’s motion. I. Rule 12(b)(1) Motion to Dismiss Counts I and II of Zurn’s Counterclaim as They Relate to the Unasserted Claims In its complaint, Sloan alleges that Znrn infringed 17 of the 25 claims of the '635 Patent: Claims 1, 2-6, 7-8, 10-12, 14, 19, 28-31 and 33-34. In counts I and II of its counterclaim, Zurn seeks a declaration of invalidity and non-infringement of all of the claims of the '635 Patent. Sloan argues that because its complaint only asserts infringement of certain claims, Zurn has failed to demonstrate that a justiciable controversy exists with respect to the unasserted claims of Patent '635. Accordingly, Sloan asserts that Counts I and II of Sloan’s counterclaim must" }, { "docid": "21854660", "title": "", "text": "be dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”) A court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast as factual allegations. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981); Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968). Furthermore, in ruling on a 12(b)(6) motion, a court cannot generally consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir.1991), overruled on other grounds by Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). A court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989). The Court may also consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994). Lastly, a Rule 12(b)(6) motion “will not be granted merely because [a] plaintiff requests a remedy to which he or she is not entitled.” William W Schwarzer, et al., Civil Procedure Before Trial § 9:230. “It need not appear that plaintiff can obtain the specific relief demanded as long as the court can ascertain from the face of the complaint that some relief can be granted.” Doe v. United States Dept. of Justice," }, { "docid": "13987935", "title": "", "text": "complaint and asserting that all of Serpa’s claims were governed by ERISA. Subsequent mediation and attempts to convince Serpa that her state claims were preempted under ERISA all failed, and defendants filed the instant motion for judgment on the pleadings. Serpa subsequently attempted to amend her complaint by filing a new pleading that added two claims under ERISA (namely, breach of fiduciary duty and promissory estoppel). Because she failed either to obtain a stipulation from defendants or leave of the court to amend the complaint, defendants moved to strike Serpa’s amended complaint under Rule 15(a). Serpa then filed a motion asking the court for leave to amend the complaint. See Fed.R.Civ.P. 15(a). LEGAL STANDARDS I. Judgment on the Pleadings A motion for judgment on the pleadings is proper “when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Fed.R.Civ.P. 12(c); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). In reviewing a motion under Rule 12(c), the court must assume that the facts alleged by the nonmoving party are true and must construe all inferences drawn from those facts in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). The court need not assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. 1 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). II. Motion for Leave to Amend A party is entitled to amend its pleadings once as a matter of course before a responsive pleading is served. See Fed.R.Civ.P. 15(a). After a response has been filed, a party may amend its pleadings “only by leave of court or by written consent of the adverse party.” Id. Federal Rule of Civil Procedure" }, { "docid": "11468029", "title": "", "text": "The amended complaint alleges two instances of inequitable conduct. First, it states that TWC “willfully or with gross negligence during the prosecution of the application that became the ’469 Patent failed to disclose to the United States Patent and Trademark Office (‘PTO’) material prior art, including United States Patent No. 5,367,726 relating to a pneumatic support system, which misled the PTO.” Am. Compl. ¶ 17. Second, the complaint alleges that TWC “submitted false information to the PTO as to TWC’s qualification as a small entity with the intent to mislead the PTO.” Id. ¶ 18. On January 19, 2005, TWC filed a motion to dismiss plaintiffs claims of inequitable conduct under Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. On the same day TWC also filed its answer and a counterclaim for infringement of the ’469 patent. On February 7, plaintiff filed an answer to the counterclaim, asserting an affirmative defense of unenforceability of the ’469 patent “as a result of TWC’s inequitable conduct.” Answer of Counterclaim Defendant Intex Recreation Corp. to Counterclaim ¶ 13.' On February 28, 2005, TWC filed a motion to strike that affirmative defense on the same grounds it had asserted in its motion to dismiss- — legal insufficiency and failure to plead with particularity. II. DISCUSSION A. Standard of Review A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can demonstrate no set of facts that supports its claim entitling it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1117 (D.C.Cir.2000). In evaluating the motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the Court accept" }, { "docid": "20269302", "title": "", "text": "claims of Patent '635 pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, (ii) dismiss Count III of Zurn’s counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6), and (iii) strike Zurn’s First, Second, Third, Sixth and Seventh affirmative defenses. For the following reasons, the Court grants in part and denies in part Zurn’s motion. I. Rule 12(b)(1) Motion to Dismiss Counts I and II of Zurn’s Counterclaim as They Relate to the Unasserted Claims In its complaint, Sloan alleges that Znrn infringed 17 of the 25 claims of the '635 Patent: Claims 1, 2-6, 7-8, 10-12, 14, 19, 28-31 and 33-34. In counts I and II of its counterclaim, Zurn seeks a declaration of invalidity and non-infringement of all of the claims of the '635 Patent. Sloan argues that because its complaint only asserts infringement of certain claims, Zurn has failed to demonstrate that a justiciable controversy exists with respect to the unasserted claims of Patent '635. Accordingly, Sloan asserts that Counts I and II of Sloan’s counterclaim must be dismissed pursuant to Rule 12(b)(1) with respect to the unasserted claims because the Court lacks subject matter jurisdiction over those claims. The Declaratory Judgment Act provides, in relevant part: In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201(a). In MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007), the Supreme Court revised the Federal Circuit’s jurisprudence regarding standing to seek a declaratory judgment of patent invalidity. The Supreme Court held that a party may assert an action for declaratory judgment where the alleged facts “ ‘under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of" }, { "docid": "1918372", "title": "", "text": "and 2) bears a significant relationship to a traditional mar itime activity, here operating a vessel and engaging in maritime commerce. See Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972); East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2298, 90 L.Ed.2d 865 (1986). B. Standards for Rule 12(c) and 12(b)(6) Motions In a Rule 12(b)(6) motion, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In a Rule 12(c) motion for judgment on the pleadings, the moving party must show that there are no material issues of fact to be resolved and that it is entitled to judgment as a matter of law. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. den., 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1368 (1969)). All the facts alleged in the complaint must be taken as true, and all reasonable inferences must be made and all doubts resolved in favor of the non-moving party. Id. Moreover, courts are reluctant to grant these motions where unsettled questions of law are involved. Electrical Construction & Maintenance Co. v. Maeda Pacific Corp., 764 F.2d 619, 623 (9th Cir.1985) (quoting from 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1357 (1969)). II. DID TAPAA DISPLACE OR INCORPORATE THE PRIOR JUDGE MADE ADMIRALTY RULE OF ROBINS DRY DOCm A. Introduction The disposition of the bulk of these motions rests upon whether the various plaintiffs may collect damages for economic losses in the absence of physical injury on claims asserted under TAPAA and other federal and state law. The starting point is Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303," } ]

[ { "docid": "3083575", "title": "", "text": "the conspiracy charged in Count one is broad enough and sufficiently far-reaching to include any conspiracy proven. Abushi maintains that the jury is left with the instruction that either they find the overall conspiracy or several smaller ones, but in either event any conspiracy will suffice for the purposes of Count one. This, he argues, is not the law of the Circuit. When reviewing a claim of error relating to jury instructions, the appellate court must view the instructions as a whole. “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975), quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). A trial judge is given substantial latitude in tailoring jury instructions so long as they fairly and adequately cover the issues presented. United States v. James, 576 F.2d 223, 226 (9th Cir. 1978). “[Neither party, including a criminal defendant, may insist upon any particular language.” Id. Challenges to the trial judge’s language or his formulation of the charges justify reversal only for an abuse of discretion. Id. at 227; see United States v. Park, supra, 421 U.S. at 675, 95 S.Ct. at 1913. If from the evidence the jury might reasonably find one common overall plan as well as several separate and independent agreements, the court should instruct the jury on the issue of multiple conspiracies. United States v. Eubanks, 591 F.2d 513, 518 (9th Cir. 1979) (per curiam). Here, the district judge instructed the jury as to multiple conspiracies on three separate occasions. Each of these instructions was consistent with the view that proof of multiple conspiracies or agreements when a single conspiracy was charged in the indictment does not necessarily require that members of those separate conspiracies be acquitted of the overall conspiracy charged. The district judge instructed the jury that if it found two or more separate agreements, it was required to acquit any defendant who participated only in" } ]

[ { "docid": "18746799", "title": "", "text": "verdict would not be preserved by mere agreement on guilt unless jury consensus on the de fendant’s course of action is also required. Id. at 458. The possibility that the jury may have returned its verdict “in the face of a substantial rift among the jurors over the facts” infringed Gipson’s substantial rights. Id. at 459. The same concern prompted the trial court to initially grant a new trial in this case. Payseno also relies on two Ninth Circuit cases: United States v. Mastelotto, 717 F.2d 1238 (9th Cir.1983), and United States v. Echeverry, 698 F.2d 375 (9th Cir.1983), modified, 719 F.2d 974 (9th Cir.1983). In Mastelotto, we reversed a mail and wire fraud conviction for the court’s failure to instruct that all jurors had to agree on the existence of, and defendant’s participation in, the same scheme to defraud. Mastelotto, supra, at 1247. In Echeverry, we reversed a drug conviction because an ambiguous instruction permitted the jury to convict without unanimous agreement on the existence and duration of a single conspiracy or multiple conspiracies. Echeverry, supra, at 377. We explained in that decision that: “We are not free to hypothesize whether the jury indeed agreed to and was clear on the duration of a single conspiracy or of multiple conspiracies.” Id. On rehearing, the court acknowledged that, in routine cases involving multiple counts or schemes, it may be possible to protect the defendant’s rights though a general unanimity instruction similar to the type given here. 719 F.2d at 974. The court went on to hold that a different rule applies where juror confusion may exist. When it appears however, that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts. Id. at 975 (emphasis added). Recently, we reaffirmed these standards in United" }, { "docid": "23404849", "title": "", "text": "See United States v. Beros, 833 F.2d 455, 460-62 (3d Cir.1987); United States v. Ryan, 828 F.2d at 1019-20; United States v. Ferris, 719 F.2d at 1407; United States v. Echeverry, 698 F.2d 375, 376-77 (9th Cir.1983), modified, 719 F.2d 974, 975 (9th Cir.1983) (en banc) (question from jury indicating confusion); United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987). Judge Higginbotham’s discussion in Be-ros states the standard normally followed in such situations by the federal courts: Our task is to determine, in light of the allegations made and the statute charged, whether the potential for juror confusion existed. We need not, and indeed probably could not in each case, satisfy ourselves that the jury was in fact confused. As the Court of Appeals for the Ninth Circuit noted in United States v. Echeverry, 698 F.2d 375, modified, 719 F.2d 974 (9th Cir.1983) (en banc), “[w]e are not free to hypothesize whether the jury indeed agreed to and was clear on the” transaction or theory by which it found Beros guilty. 698 F.2d at 377. Rather, we adhere to the simpler, and constitutionally more correct rule: When it appears ... that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts. 719 F.2d at 975 (emphasis supplied); accord Payseno, 782 F.2d at 837; United States v. Mastelotto, 717 F.2d 1238 (9th Cir.1983). 833 F.2d at 461 (emphasis original). In the context of this case, the jury’s request for clarification manifested just such a tangible risk of jury confusion and of nonunanimity on a necessary element of the offense charged. Presented with this risk, the trial judge unfortunately appears not to have appreciated the thrust of the jurors’ problem. Instead, the" }, { "docid": "1723809", "title": "", "text": "to Stearns’s claims here. VI UNANIMITY INSTRUCTION The district court gave the jury a standard instruction regarding the unanimity of its verdict: In closing, I wish to admonish you that any verdict rendered by you must represent the considered judgment of each juror. In order to return a verdict or verdicts, it is necessary that each juror agree thereto. Your verdicts must be unanimous, twelve/zero vote[s]. Appellants claim this instruction was inadequate and threatened their rights to unanimous verdicts. Because they tendered no objection to the instruction at trial, we review this claim only for plain error. Pazsint, 703 F.2d at 424; United States v. Tornabene, 687 F.2d 312, 317 (9th Cir.1982). Appellants rely upon United States v. Echeverry, 719 F.2d 974 (9th Cir.), modifying 698 F.2d 375 (1983). Echeverry held that when “there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice.” 719 F.2d at 975. The evidence presented in that case allowed the jurors to infer the existence of more than one conspiracy, and they manifested their confusion on the unanimity requirement by sending a note to the judge during their deliberations. Appellants point to nothing in this record that suggests “a genuine possibility of jury confusion.” The three-count indictment was relatively simple and the evidence was not difficult to follow. Because there is no showing that this ease was unique, the standard unanimity instruction was adequate. See United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983); Echeverry, 719 F.2d at 974. VII BRUTON CLAIM The Government offered for admission the following letter, which was written by Puccinelli: Dear Robin— So here’s the deal — . We’re putting a big one together — have financing, property, equipment, etc. We’re starting work about Thursday this week, would like to have Terry, if he’s available, for an undetermined time, to help put it in, at least, and possibly for the duration. I expect we’ll use you all for harvest---- (Emphasis in original.) Wright objected to" }, { "docid": "23626075", "title": "", "text": "The opinion, 698 F.2d 375, is modified by adding the following paragraphs: The trial judge did give to the jury a single general instruction that their verdict had to be unanimous. This court has held that in a routine case when a jury is presented with multiple counts or schemes, it may be possible to protect the defendant’s right to an unanimous jury verdict by such a general instruction. See United States v. Ferris, 719 F.2d 1405 (9th Cir. 1983) (a general unanimity instruction suffices when a case involving multiple acts within one count of an indictment is sufficiently clear in its presentation so that unanimity can be presumed); United States v. Friedman, 445 F.2d 1076 (9th Cir.1971) (the jury must be presumed to have followed the unanimity instruction and all agreed to at least one of several possible conspiracies even though no specific instruction was given to that effect); Vitello v. United States, 425 F.2d 416 (9th Cir.1970). See also United States v. Natelli, 527 F.2d 311 (2d Cir. 1975). When it appears, however, that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts. Such circumstances are certainly present in this case. The jury’s written questions indicated their confusion concerning multiple conspiracies and should have alerted the trial judge to the potential for a nonunanimous verdict. See United States v. Mastelotto, 717 F.2d 1238 (9th Cir.1983) (variance between the proof at trial and the indictment in a ease involving multiple schemes to defraud presents such a potential for juror confusion that special unanimity instructions are required). The Petition for rehearing is denied." }, { "docid": "23174853", "title": "", "text": "instruct the jury that it must unanimously agree on what three acts satisfied section 848’s continuing series requirement. Although a general unanimity instruction was given by the district court, Hernandez claims that a specific instruction focusing on the predicate acts was necessary to protect his unanimity rights. To support this assertion, Hernandez relies on a recent Third Circuit case, United States v. Echeverri, 854 F.2d 638 (3d Cir.1988), which held that a specific unanimity instruction was required on somewhat similar facts. This circuit has repeatedly held that, in the ordinary case, a general instruction on jury unanimity is sufficient to protect a defendant’s constitutional rights. See, e.g., United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989); United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir.1988); United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983). Unanimity, however, “means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the [principal] factual elements underlying a specified offense.” Ferris, 719 F.2d at 1407 (citing United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)). Thus, “[w]hen it appears ... that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice.” United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying 698 F.2d 375 (1983); see also Anguiano, 873 F.2d at 1319-21. In such situations, the trial court must augment its general instruction to ensure that the jury understands its duty unanimously to agree to a particular set of facts. Echeverry, 719 F.2d at 975. We need not decide in the instant case, however, whether such augmentation was necessary to safeguard Hernandez’ rights, because we find that the facts support the conclusion that the jury unanimously agreed on three predicate offenses. Thus, any instructional error was harmless. In this case, the CCE charge in the indictment, which was read to the jury and taken by the jury to the jury room, listed eleven" }, { "docid": "23442531", "title": "", "text": "Payseno, 782 F.2d 832, 835 (9th Cir.1986). A specific unanimity instruction is required only when it appears that “‘there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.’ ” United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989) (quoting United States v. Echeverry, 719 F.2d 974, 974 (9th Cir.), modifying, United States v. Echeverry, 698 F.2d 375 (9th Cir.1983)). Kim contends that a specific unanimity instruction was required for both reasons. We consider first Kim’s contention regarding jury confusion. Kim analogizes the present case to United States v. Echeverry, supra, in which this court held that a special unanimity instruction is required where the jury indicates, by written questions to the court, that there is confusion concerning a conspiracy charge. The present case is clearly distinguishable from Echeverry. In Echeverry, the defendant was charged with conspiring to distribute cocaine throughout a seven-month period, from December 1980 to June 1981, and actual distribution of cocaine on three separate occasions. United States v. Echeverry, 698 F.2d at 376. At trial, proof was offered of cocaine sales in December 1980 and June 1981. Id. During jury deliberations, the jury asked, “[m]ay we consider a conspiracy that does not cover that entire time span,” and “[m]ay we consider the existence of more than one conspiracy?” Id. Under those circumstances, this court had “no means by which [to] be certain that some portion of the jury, in casting a guilty ballot, did not envision a December conspiracy and failed to find enough evidence to believe that there was a June conspiracy, while other jurors envisioned a June conspiracy and not a December conspiracy.” Id. at 377. Therefore, the jury’s note necessitated a special unanimity instruction. See id. at 377-78. Unlike Echeverry, Kim in the present case was charged with only a single crime, based upon a single set of facts: aiding and abetting the possession of stolen goods on February 17, 1996 at the Anaheim warehouse. Furthermore, unlike Echeverry, the note from the jury in the present" }, { "docid": "357708", "title": "", "text": "the efforts of Teesan Corporation to obtain financing for the games and equipment and to lease the equipment to produce revenue. The common enterprise requirement clearly was met. There was sufficient evidence to support the district court’s determination that the investments were securities under 15 U.S.C. § 77b(l). D. Jury Instructions Appellant Richmond contends that the district court did not adequately instruct the jury that, in order to return a guilty verdict, they had to agree unanimously on the identity or extent of the alleged scheme to defraud. Richmond contends that, as a result, the jurors may have arrived at divergent conclusions concerning the nature or extent of the scheme, thus violating appellant’s sixth amendment guarantees to a unanimous jury verdict. See United States v. Echeverry, 698 F.2d 375, 377 (9th Cir.), modified, 719 F.2d 974 (9th Cir.1983). When reviewing a claim of error relating to jury instructions, we view the instructions as a whole. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982). The trial judge’s choice of language justifies reversal only for an abuse of discretion. United States v. Park, 421 U.S. 658, 675, 95 S.Ct. 1903, 1913, 44 L.Ed.2d 489 (1975). In a mail fraud case in which a defendant contends that a variance has occurred between the single scheme charged in each count of the indictment and the proof at trial, the jury must be instructed that, to return a guilty verdict, each of the jurors must find the defendant guilty of participation in the same single scheme to defraud alleged in the indictment. Mastelotto, 717 F.2d at 1247. Two recent decisions of this court have reversed convictions where jury instructions failed to articulate the need for jury unanimity regarding the particular charged fraud or conspiracy. Id. at 1243 n. 3, 1249-50 (mail fraud convictions overturned where jury instructions affirmatively stated that jurors could find either a “scheme or schemes”, and did not expressly require a finding of the charged scheme); Echeverry, 698 F.2d at 376-77 (conspiracy conviction overturned where jury instructions permitted portions of the jury to find different conspiracies). The district court in" }, { "docid": "23365875", "title": "", "text": "is required because, in such a situation, there is a possibility of prejudicial variance between the indictment and the trial proof. Id. The variance may be prejudicial in a number of ways, but the problem that is of concern here is the possibility of transference or “spillover” of guilt. See United States v. Morse, 785 F.2d 771, 775 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2925, 91 L.Ed.2d 553 (1986); see also United States v. Richerson, 833 F.2d 1147, 1155 (5th Cir.1987). In this type of situation, one of the defendants argues that he or she was only involved, if at all, in a minor conspiracy that is unrelated to the overall conspiracy charged in the indictment, and that a multiple conspiracies instruction is required in order to ensure that there is no “spillover” of guilt from one defendant to another. United States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980). However, there is no problem of spillover when, as in this case, the defendant stands trial alone. See United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977); United States v. Sir Kue Chin, 534 F.2d 1032, 1035-36 (2d Cir.1976). Accordingly, Anguiano was not entitled to a multiple conspiracies instruction on this basis. Anguiano argues, however, that an instruction concerning multiple conspiracies was still required in her case in order to protect her right to a unanimous jury verdict. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983) (specific unanimity instruction required where “there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts”), modifying 698 F.2d 375 (9th Cir.1983). This argument is without merit. Anguiano’s argument confuses a specific unanimity instruction with a multiple conspiracies instruction. The two sets of instructions are not the same. First, as noted above, a multiple conspiracies instruction is generally designed for trials involving multiple defendants engaged in multiple conspiracies, not for trials of lone defendants who are" }, { "docid": "1807197", "title": "", "text": "corresponds to the conspiracy charged in the indictment. Paris has failed to demonstrate a “genuine possibility of jury confusion” that could have resulted in conviction for a conspiracy not specified in the indictment. Echeverry, 719 F.2d at 975. Under such circumstances, the district court's general instruction on unanimity was sufficient without a further statement that a single set of facts must be agreed upon. United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983). Paris also claims that the court erred by refusing to adopt his “stake-in-the-outcome” instruction. To connect Paris with the conspiracy, the evidence must have shown that he had knowledge of the conspiracy and acted in furtherance of it. United States v. Guerrero, 756 F.2d 1342, 1349 (9th Cir.1984). Casual association with members of the conspiracy is not sufficient. United States v. Cloughessy, 572 F. 2d 190, 191 (9th Cir.1977). The trial judge instructed the jury that “to find against Paris, you must find that [he] joined the conspiracy, and did so knowing of the unlawful plan and intending to help carry it out.” This formulation adequately states the law and therefore was not an abuse of discretion. G. Disparity of Sentences The challenged disparity came about in this fashion. DePalm entered a plea of guilty to possession with intent to distribute and received a one year sentence. Paris proceeded to trial and received a sentence of five years imprisonment, with a special parole term of five years, for possession with intent to distribute, and a consecutive five year prison term for conspiracy. Paris thinks this is too much and claims that the evidence does not warrant the disparity in sentences. Sentences that do not exceed the statutory maxima are generally committed to the district court’s broad discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). When, however, there is a substantial disparity in sentences imposed on defendants engaged in the same criminal activity, and a defendant's constitutional right to stand trial is implicated, proper reasons for the disparity must be “readily discernible” from the record. United States v. Hall, 778 F.2d 1427, 1428 (9th" }, { "docid": "23404848", "title": "", "text": "conceptual groupings,” in Judge Wisdom’s phrase) upon which a conviction could rest, only a general instruction on unanimity is necessary to advise the jury that they must be unanimous “on whatever specifications form the basis of the guilty verdict,” United States v. Ryan, 828 F.2d at 1019-20 (quoting United States v. Payseno, 782 F.2d 832, 835 (9th Cir.1986)); see United States v. Murray, 618 F.2d 892, 898 (2d Cir.1980), unless under the count in question: (1) the nature of the evidence is exceptionally complex or the alternative specifications are contradictory or only marginally related to each other; or (2) there is a variance between indictment and proof at trial; or (3) there is tangible indication of jury confusion, as when the jury has asked questions or the court has given regular or supplementary instructions that create a significant risk of nonunanimity. The touchstone has been the presence of a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts. See United States v. Beros, 833 F.2d 455, 460-62 (3d Cir.1987); United States v. Ryan, 828 F.2d at 1019-20; United States v. Ferris, 719 F.2d at 1407; United States v. Echeverry, 698 F.2d 375, 376-77 (9th Cir.1983), modified, 719 F.2d 974, 975 (9th Cir.1983) (en banc) (question from jury indicating confusion); United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987). Judge Higginbotham’s discussion in Be-ros states the standard normally followed in such situations by the federal courts: Our task is to determine, in light of the allegations made and the statute charged, whether the potential for juror confusion existed. We need not, and indeed probably could not in each case, satisfy ourselves that the jury was in fact confused. As the Court of Appeals for the Ninth Circuit noted in United States v. Echeverry, 698 F.2d 375, modified, 719 F.2d 974 (9th Cir.1983) (en banc), “[w]e are not free to hypothesize whether the jury indeed agreed to and was clear on the”" }, { "docid": "11585462", "title": "", "text": "Payne, 944 F.2d 1458, 1463 (9th Cir.), cert. denied, 503 U.S. 975, 112 S.Ct. 1598, 118 L.Ed.2d 313 (1992). Melvin relies on United States v. Echeverry, 698 F.2d 375 (9th Cir.1983), modified 719 F.2d 974 (9th Cir.1983), for the proposition that when there is a genuine possibility of jury confusion, a general unanimity instruction is insufficient. He contends that a specific unanimity instruction was required to ensure that jurors were not convicting him for schemes not in the indictment. In Echev-erry, the jury’s written questions indicated their confusion as to multiple conspiracies. Id. at 975. Melvin’s jury did not submit questions indicating confusion as to the multiple schemes. The schemes in this case were distinctly named and thus easily classified. In the main, the only schemes discussed in detail were the five substantive schemes in the indictment. Evidence of uncharged schemes was introduced to show Melvin’s involvement, but the jurors were expressly told that Melvin needed to be found guilty of the substantive counts in order to be convicted of the racketeering and racketeering conspiracy counts. Thus, there is no evidence of an ambiguous instruction which could lead to juror confusion, nor is there evidence of any actual juror confusion. We therefore find no manifest injustice that would suggest plain error. The instructions given were sufficient. III. THE INNOCENT EXPLANATION JURY INSTRUCTION Melvin also argues that the district court erred by refusing to instruct the jury on his theory of the case. Specifically, he and co-defendant Fonda Snyder requested an instruction advising the jury that if an innocent explanation existed for their conduct, their guilt must be proven beyond a reasonable doubt. We review de novo whether jury instructions adequately covered the defense’s theory. United States v. Duran, 59 F.3d 938, 941 (9th Cir.), cert. denied — U.S. -, 116 S.Ct. 535, 133 L.Ed.2d 440 (1995). Melvin requested the following jury instruction: When there is an innocent explanation for a defendant’s conduct as well as one which suggests that the defendant was engaged in wrongdoing, the Government must produce evidence which would allow you, the jury, to conclude beyond a" }, { "docid": "1807195", "title": "", "text": "United States v. Garner, 663 F.2d 834, 840 (9th Cir.1981) (outlining proper procedure for immunity request), cert. denied, 456 U.S. 905, 102 S.Ct. 1750, 72 L.Ed.2d 161 (1982). The government’s refusal sua sponte to grant immunity to DePalm did not deprive Paris of a fair trial. E. Exclusion of a Defense Witness Paris offered the testimony of former DEA agent Gerald Scotti, who would have given his opinion that dealers such as DePalm do not reveal the true identity of their source. The court refused to allow Scotti’s testimony. A district court’s exclusion of an expert will be upheld unless manifestly erroneous. United States v. Byers, 730 F.2d 568, 571 (9th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984). Paris argues that admission of Scotti’s testimony would have assisted both judge and jury. First, it is within the sound discretion of an experienced judge to determine whether or not expert testimony about a drug dealer’s standard behavior would assist him in understanding the facts or issues. Second, DEA agent Hafley on cross-examination had already testified that dealers only volunteer information about a source to convince a purchaser that a relationship with the source exists, but dealers are “not going to reveal to the normal drug buyer who the source is.” Reporter’s Transcript at 293-95. Third, the relevance of Scotti’s testimony is questionable, because DePalm did not expressly reveal Paris’s identity. Exclusion of Scotti’s testimony was not manifestly erroneous. F. Jury Instructions When the nature of the evidence presented at trial results in a variance between the proof and the indictment, circumstances may warrant an instruction requiring agreement on a single set of facts. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying 698 F.2d 375 (9th Cir.1983). Paris contends that the court erred by not giving such an instruction here. We review a district court’s formulation of jury instructions for an abuse of discretion. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982). Our review of the record reveals but a single conspiracy to sell cocaine to DEA agent Hafley. This" }, { "docid": "1807194", "title": "", "text": "387, 106 S.Ct. 1121, 1126, 89 L.Ed.2d 390 (1986) (unavailability). The effect of these two cases is to render the Sixth Amendment requirements for admitting co-conspirator statements “identical” to those of Rule 801(d)(2)(E). See Bourjaily, — U.S. -, 107 S.Ct. at 2783. The Confrontation Clause is therefore of no assistance to Paris. 2. Due Process Paris correctly cites United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976), for the proposition that we will reverse a conviction on due process grounds if the “appellant was denied a fair trial because of the government’s refusal to seek immunity for defense witnesses.” There is no evidence beyond an ambiguous offer of proof made by Paris’s attorney that DePalm would have retracted his statements that implicated Paris and would have testified that Paris was “set up.” Nor does the evidence support the proposition that the government intentionally caused DePalm to invoke his Fifth Amendment privilege. Finally, Paris never asked the prosecutor to grant DePalm immunity. See United States v. Garner, 663 F.2d 834, 840 (9th Cir.1981) (outlining proper procedure for immunity request), cert. denied, 456 U.S. 905, 102 S.Ct. 1750, 72 L.Ed.2d 161 (1982). The government’s refusal sua sponte to grant immunity to DePalm did not deprive Paris of a fair trial. E. Exclusion of a Defense Witness Paris offered the testimony of former DEA agent Gerald Scotti, who would have given his opinion that dealers such as DePalm do not reveal the true identity of their source. The court refused to allow Scotti’s testimony. A district court’s exclusion of an expert will be upheld unless manifestly erroneous. United States v. Byers, 730 F.2d 568, 571 (9th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984). Paris argues that admission of Scotti’s testimony would have assisted both judge and jury. First, it is within the sound discretion of an experienced judge to determine whether or not expert testimony about a drug dealer’s standard behavior would assist him in understanding the facts or issues. Second, DEA agent Hafley" }, { "docid": "1807196", "title": "", "text": "on cross-examination had already testified that dealers only volunteer information about a source to convince a purchaser that a relationship with the source exists, but dealers are “not going to reveal to the normal drug buyer who the source is.” Reporter’s Transcript at 293-95. Third, the relevance of Scotti’s testimony is questionable, because DePalm did not expressly reveal Paris’s identity. Exclusion of Scotti’s testimony was not manifestly erroneous. F. Jury Instructions When the nature of the evidence presented at trial results in a variance between the proof and the indictment, circumstances may warrant an instruction requiring agreement on a single set of facts. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying 698 F.2d 375 (9th Cir.1983). Paris contends that the court erred by not giving such an instruction here. We review a district court’s formulation of jury instructions for an abuse of discretion. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982). Our review of the record reveals but a single conspiracy to sell cocaine to DEA agent Hafley. This corresponds to the conspiracy charged in the indictment. Paris has failed to demonstrate a “genuine possibility of jury confusion” that could have resulted in conviction for a conspiracy not specified in the indictment. Echeverry, 719 F.2d at 975. Under such circumstances, the district court's general instruction on unanimity was sufficient without a further statement that a single set of facts must be agreed upon. United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983). Paris also claims that the court erred by refusing to adopt his “stake-in-the-outcome” instruction. To connect Paris with the conspiracy, the evidence must have shown that he had knowledge of the conspiracy and acted in furtherance of it. United States v. Guerrero, 756 F.2d 1342, 1349 (9th Cir.1984). Casual association with members of the conspiracy is not sufficient. United States v. Cloughessy, 572 F. 2d 190, 191 (9th Cir.1977). The trial judge instructed the jury that “to find against Paris, you must find that [he] joined the conspiracy, and did so knowing of the unlawful plan and intending to help carry" }, { "docid": "18674114", "title": "", "text": "conspiracy was admitted into evidence without objection, and the plain error rule is therefore applicable. It is also relevant that the prosecutor did not refer to Goodale and Leven’s testimony in his closing argument. Under all of these circumstances, we conclude that the trial judge’s limiting instruction rendered harmless his error in admitting the irrelevant testimony about the B & G Corporation conspiracy. VI Finally, Laykin argues that the jury instruction on the time limits of the conspiracy created three more errors. The instruction given by the trial judge to the jury listed the starting date of the conspiracy as January 1, 1985, two months earlier than listed in the indictment. Laykin first argues that this makes the dates of the indictment even more remote than before. However, for the reasons given in Section III, supra, we find this argument unpersuasive. Second, Laykin contends that the variance between the jury instruction and the indictment violates his right to have a grand jury return the indictment. However, it is clear that when time is not a material element of the offense, as is the case here, the court may constructively amend the indictment without running afoul of the Fifth Amendment. Krana v. United States, 546 F.2d 785, 786 (8th Cir.1976); see also United States v. Abascal, 564 F.2d 821 (9th Cir.1977). Third, Laykin suggests that the variance between the indictment and jury charge deprived him of the right to a unanimous jury verdict. This contention is equally without merit. The trial judge gave a general instruction to the jury that its verdict had to be unanimous. Because we do not believe that this is a case in which there is a “genuine possibility” that the members of the jury were confused or that Laykin’s conviction was the result of “different jurors concluding that the defendant committed different acts,” United States v. Echeverry, 698 F.2d 375 (9th Cir.), as modified, 719 F.2d 974, 975 (9th Cir.1983), we conclude that the trial judge's instruction was sufficient to secure the defendant’s right to a unanimous jury verdict. See, e.g., United States v. Ferris, 719" }, { "docid": "23365879", "title": "", "text": "exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.” United States v. Bastillo, 789 F.2d 1364, 1367 (9th Cir.1986). Furthermore, we have previously noted that only “[rjarely will an improper jury instruction justify a finding of plain error.” United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), modified on other grounds, 872 F.2d 334 (9th Cir.1989). 2. Discussion We have held that where it appears that “there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts,” an instruction should be given to the effect that the jury may not convict unless it “unanimously agree[s] to a particular set of facts.” Echeverry, 719 F.2d at 975. However, in the ordinary case, a general instruction that the verdict must be unanimous will be sufficient to protect the defendant’s rights. Id. at 974; United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983). This court has identified a number of situations in which there is a “genuine possibility of juror confusion,” thus necessitating a specific unanimity instruction. First, the instruction is required in cases, such as Echeverry itself, where the jury actually indicates, by note to the court, that it is confused about the nature of the conspiracy charged. 719 F.2d at 975 (“The jury’s written questions indicated their confusion concerning multiple conspiracies and should have alerted the trial judge to the potential for a nonunanimous verdict.”); see also United States v. Gordon, 844 F.2d 1397, 1401-02 (9th Cir.1988). In the present case, however, there was no communication or other indication from the jury suggesting that it was in any way confused. Anguiano argues that such confusion is indicated by the fact that the jury convicted her of the conspiracy count, but acquitted her of the attempted possession count. This assertion is little more than speculation, see Richerson, 833 F.2d at 1155 (rejecting as speculative defendant’s argument that lack of jury unanimity was indicated by his conviction" }, { "docid": "23177119", "title": "", "text": "possibility of juror confusion. United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983); United States v. Echeverry, 719 F.2d 974, 975, modifying 698 F.2d 375 (9th Cir.1983). Otherwise, a general instruction on the unanimity of the verdict will suffice. Ferris, 719 F.2d at 1407. This case presents none of the factors that require an instruction on unanimity regarding specific acts. The indictment alleged one unified scheme to defraud. The evidence at trial supported the existence of that scheme, and was not at variance with the indictment. Neither the indictment nor the evidence created any ambiguity as to the possible existence of multiple schemes. Although the jury was not instructed on the need to agree on the principal factual elements involved in the charge of mail and wire fraud, given the nature of the evidence before it, it could not have convicted appellants without so agreeing. We find that the court’s instructions were proper and that it did not err in failing to give a special unanimity instruction regarding the specific acts constituting the scheme. IV. Ex Parte Communication The failure of the court to notify appellants or their counsel of the jury’s deadlock vote, and the court’s ex parte message to the jury to continue its deliberations, violated appellants’ constitutional rights. Nevertheless, we are required to affirm their convictions. The Constitution, the fundamental principles of jury trial, and the Federal Rules of Criminal Procedure guarantee a defendant the right to be present at every stage of trial. See, e.g., Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (right of presence secured by the confrontation clause); Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (presence guaranteed by due process clause); Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1 (1975) (rule of orderly conduct of jury trial requires defendant’s presence); Fed.R.Crim.P. 43(a) (“The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the" }, { "docid": "23174854", "title": "", "text": "1407 (citing United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)). Thus, “[w]hen it appears ... that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice.” United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying 698 F.2d 375 (1983); see also Anguiano, 873 F.2d at 1319-21. In such situations, the trial court must augment its general instruction to ensure that the jury understands its duty unanimously to agree to a particular set of facts. Echeverry, 719 F.2d at 975. We need not decide in the instant case, however, whether such augmentation was necessary to safeguard Hernandez’ rights, because we find that the facts support the conclusion that the jury unanimously agreed on three predicate offenses. Thus, any instructional error was harmless. In this case, the CCE charge in the indictment, which was read to the jury and taken by the jury to the jury room, listed eleven violations constituting the required series. Two of the violations were the conspiracy for importation of marijuana and conspiracy to possess with intent to distribute marijuana. Hernandez was convicted on both of these charges and thus there is no question of juror unanimity on these two listed violations. We are therefore only concerned with whether the jury unanimously agreed on at least a third violation. The remaining listed violations were substantive offenses of importation and possession with intent to distribute marijuana alleged to have been committed by members of the two conspiracies. They involved four separate missions of planes flying from Mexico and unloading shipments of marijuana in the United States, and a fifth occasion when marijuana was alleged to have been flown from within the United States and received by co-conspirators. In the context of this case, it is inconceivable that the jurors would not have found that these substantive offenses were committed. The co-conspirators involved testified in detail as to these events and the evidence was overwhelming. The whole thrust of the defense by" }, { "docid": "23365876", "title": "", "text": "in this case, the defendant stands trial alone. See United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977); United States v. Sir Kue Chin, 534 F.2d 1032, 1035-36 (2d Cir.1976). Accordingly, Anguiano was not entitled to a multiple conspiracies instruction on this basis. Anguiano argues, however, that an instruction concerning multiple conspiracies was still required in her case in order to protect her right to a unanimous jury verdict. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983) (specific unanimity instruction required where “there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts”), modifying 698 F.2d 375 (9th Cir.1983). This argument is without merit. Anguiano’s argument confuses a specific unanimity instruction with a multiple conspiracies instruction. The two sets of instructions are not the same. First, as noted above, a multiple conspiracies instruction is generally designed for trials involving multiple defendants engaged in multiple conspiracies, not for trials of lone defendants who are worried that the jury may not agree upon the same set of facts. Second, the instructions requested by An-guiano would not have cured the unanimity problem of which she complains. Angui-ano asserts that count 1 of the indictment permitted the jury to convict her for either the June 13 or the June 16 conspiracies, and that there is therefore a risk that the jurors could have convicted her without agreeing upon which conspiracy Anguiano had participated in. However, the proposed instructions, which merely alerted the jury to the fact that it must consider the possible existence of a conspiracy other than “the conspiracy charged in Count 1,” would not have removed the alleged ambiguity surrounding which conspiracy is alleged in count 1. The appropriate instruction to cure the asserted deficiency would have been an instruction that the jurors must unanimously agree on the dates of the conspiracy in which they found the defendant participated. See Echeverry, 698 F.2d at 377. B. Specific Unanimity Instruction 1. Standard of review The record reveals that Anguiano did not" }, { "docid": "23177118", "title": "", "text": "Green, 745 F.2d at 1209. In the present case, the court instructed the jury that the government must prove beyond a reasonable doubt the existence of a fraudulent scheme substantially as broad as that charged in the indictment. The court explained the elements of mail and wire fraud correctly, and gave the standard instructions on reasonable doubt. The court further advised the jury that the verdict must be unanimous. In a mail or wire fraud prosecution, jurors must be instructed that they must agree on the existence of a single scheme to defraud. United States v. Mastelotto, 717 F.2d 1238, 1247-48 (9th Cir.1983). However, a specific instruction that the jury must agree on a particular set of facts is required only where it appears that a conviction might rest upon different jurors having found the existence of different facts, in violation of the defendant’s right to a unanimous verdict. That situation arises where the complex nature of the evidence, a discrepancy between the evidence and the indictment, or some other particular factor creates a genuine possibility of juror confusion. United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983); United States v. Echeverry, 719 F.2d 974, 975, modifying 698 F.2d 375 (9th Cir.1983). Otherwise, a general instruction on the unanimity of the verdict will suffice. Ferris, 719 F.2d at 1407. This case presents none of the factors that require an instruction on unanimity regarding specific acts. The indictment alleged one unified scheme to defraud. The evidence at trial supported the existence of that scheme, and was not at variance with the indictment. Neither the indictment nor the evidence created any ambiguity as to the possible existence of multiple schemes. Although the jury was not instructed on the need to agree on the principal factual elements involved in the charge of mail and wire fraud, given the nature of the evidence before it, it could not have convicted appellants without so agreeing. We find that the court’s instructions were proper and that it did not err in failing to give a special unanimity instruction regarding the specific acts constituting the scheme." } ]

[ { "docid": "9761466", "title": "", "text": "Jury. Rather, such a statement is merely a “housekeeping provision” of the Justice Department and is so limited in its effect. Sullivan v. United States, 348 U.S. 170, 173, 75 S.Ct. 182, 99 L.Ed.2d 210 (1954). We agree with the above statement. Moreover, in our present case no conviction or acquittal had been obtained in the state litigation. The federal conviction occurred prior to any disposition of the state litigation. Hence, we do not have a situation where a defendant has been convicted by both the federal government and the state for the same offense. The trial court properly found upon the basis of substantial evidence, including that of the state’s attorney, that the United States Attorney had not exerted any pressure upon the state prosecution in connection with pending state plea bargaining. The court upon the basis of the facts before it committed no error in refusing to dismiss the case upon the basis of the Petite policy. IV. No error was committed in allowing witnesses to testify with respect to their pretrial- identification of defendant in a photographic line-up which took place shortly after the offense here involved. The trial court, after an evidentiary hearing, found that the photographic line-up was fairly conducted and such view has full support in the evidence. Defendant contends that the photographic identification testimony does not meet the hearsay exception of Fed.R.Evid. Rule 801(d)(1)(C). A similar contention was rejected by the Second Circuit in United States v. Marchand, 564 F.2d 983, 996-97. We agree with such determination. In any event, the in-court identification of the defendant upon the basis of ample opportunity to observe the defendant at the time of the offense is strong and no prejudicial error was committed in receiving the photographic evidence. Our review of the record upon the basis of the errors asserted convinces us that the defendant has had a fair trial, that no prejudicial error has been committed and that the conviction should be and is affirmed. . He was sentenced to forty-two months imprisonment on Count I with all but six months of the sentence suspended" } ]

[ { "docid": "8245722", "title": "", "text": "such evidence, noting that “there was no suggestion here of any improper law enforcement purposes, and in any event the agents’ reasons for investigation were most assuredly not something the Government had to prove to carry its burden.” United States v. Mancillas, supra at 1310. Likewise, in this case no need existed to admit the details of Christy’s statement in order to explain later events — such as her mother’s observation of her vaginal area. B Mil.R.Evid. 801(d) provides: A statement is not hearsay if: (1) ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person. In requiring that a prior inconsistent statement be “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition”, this rule imposes limitations that are not constitutionally required by the sixth amendment right of confrontation. See California v. Green, 399 U.S. 149, 90 S.Ct.1930, 26 L.Ed.2d 489 (1970). There, a majority of the Supreme Court concluded that the confrontation clause did not preclude the California legislature from providing that “[ejvidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing,” id. at 150, 90 S.Ct. at 1931, and if the witness is “given an opportunity to explain or deny the prior statement at some point in the trial.” Id. n. 1. The Court recognized that under [t]he orthodox view, adopted in most jurisdictions, ... out-of-court statements are inadmissible for the usual reasons that have led to the exclusion of hearsay statements: the statement may not have been made under" }, { "docid": "4056246", "title": "", "text": "the definition of hearsay because it is a statement, uttered by a declarant, and offered for its substantive truth, the final step in assessing whether it is hearsay is to see if it is excluded from the definition of hearsay by two rules: 801(d)(1), which identifies three types of prior statements by witnesses who actually testify and are subject to cross examination, which are excluded from the definition of hearsay, and 801(d)(2), which identifies five types of admissions by a party opponent that are excluded from the definition of hearsay. Fed.R.Evid. 801(d) advisory committee’s note (“[s]everal types of statements which would otherwise literally fall within the definition [of hearsay] are expressly excluded from it ... ”); Weinstein at § 801[20][1] & 801[30][1]; Saltzburg at § 801.02[2] & 801.02[6], Rule 801(d)(1) identifies three types of pri- or witness statements that are excluded from the definition of hearsay: first, 801(d)(1)(A) excludes prior inconsistent “testimonial statements” made under oath at a trial, hearing, court proceeding or deposition; next, 801(d)(1)(B) excludes prior consistent statements offered to rebut an express or implied allegation of recent fabrication, or improper influence or motive; and finally, 801(d)(1)(C) excludes statements of identification of a person made after perceiving that person. For each of these exceptions, it is required that the declarant testify at trial and be subject to cross examination about the prior statements. Fed. R. Evid 801(d)(1); Fed.R.Evid. 801(d)(1) advisory committee’s note (“[Rule 801(d)(1)] requires in each instance, as a general safeguard, that the declarant actually testify as a witness, and it then enumerates three situations in which the statement is excepted from the category of hearsay.”); Weinstein at § 801.20[2] (“For a prior witness statement to escape the hearsay rule, the declarant must testify at trial and be subject to cross-examination concerning the statement.” (citation omitted)). Rule 801(d)(2) identifies five types of statements as “admissions by a party opponent,” and excludes them from the definition of hearsay. Specifically: 801(d)(2)(A) excludes the party’s own statement, made in either an individual or representative capacity; 801(d)(2)(B) addresses a statement by another that a party has adopted or manifested a belief" }, { "docid": "14913743", "title": "", "text": "and who died prior to the trial, gave four statements about the incident. Three were made shortly after the explosion, and one after the plaintiff brought this action. All four statements indicate that Babcock directed the start-up operation. Hurt’s most recent statement, a deposition, was read at trial. After Babcock disputed Hurt’s testimony that Babcock ordered Hurt to start the compressor, appellants unsuccessfully sought to introduce Hurt’s earlier, consistent statements. Appellants contend the statements are admissible under Fed.R.Evid. 801(d)(1)(B), which provides: A statement is not hearsay if the declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an expressed or implied charge against him of recent fabrication or improper influence or motive. Appellant’s argument is without merit. The purpose of Rule 801(d)(1)(B) is to rehabilitate witnesses whose testimony is discredited, as the rule says, as being the result “of recent fabrication or improper influence or motive.” Appellants do not argue that the defendants have ever claimed, implicitly or explicitly, that Hurt’s deposition testimony was the product of recent fabrication or improper influence or motive. Admitting Hurt’s prior statements would only serve to bolster his deposition testimony after it had been disputed by another witness. This would allow any witness whose testimony is disputed by his opponent to offer cumulative prior consistent statements which are hearsay and clearly not within the scope of 801(d)(1)(B). VI. Appellees Babcock and Cooper have filed a protective cross-appeal on the dismissal of their claims against Pennwalt for indemnity and contribution for any sums for which they may be liable to Berkley and McGowan. Since we must vacate the judgment entered by the district court, we reverse that portion of the district court’s decision dismissing appellees’ aforementioned claims. VII. Accordingly, we VACATE the judgment of the district court finding appellees not liable. Further, we REVERSE the judgment of the district court dismissing the claims of Babcock and Cooper for indemnity and contribution, and REMAND the case for proceedings consistent with this opinion. KRUPANSKY, Circuit Judge, concurring in" }, { "docid": "14049639", "title": "", "text": "our attention to Rule 801(d), which contains various definitions, and provides in relevant part that: (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him ; . . . (Emphasis supplied). Appellant argues that Agent Farrell’s testimony should have been excluded because “identification of a person made after perceiving him” contemplates only corporeal, not photographic, identification; and because it was improper to allow Farrell to testify in the absence of an in-court identification by Mrs. Sharpe. Appellant also claims that Mrs. Sharpe’s testimony about her prior identification after she erroneously identified someone else in court amounted to testimony about a prior inconsistent statement not made under oath, rendering it improper under subsection (A), which overrides subsection (C). Subsection (C) of Rule 801(d)(1), the focal point of appellant’s arguments, appeared in its present form in the Rules as promulgated by the Supreme Court in November 1972. However, the Senate deleted the subsection before the Rules were approved by Congress in December 1974. Not long thereafter, the subsection was resurrected in an amendment fto Rule 801, effective October 31, 1975. The Senate Report on the 1975 amendment attributed the initial opposition to the subsection to concern over convicting a defendant solely on “unsworn, out-of-court testimony.” The Report noted, however, that the Rule required the identifier to be available for cross-examination at the trial, and in support of the view that such evidence should be admissible, cited, among other recent decisions, the Supreme Court’s discussion in Gilbert v. California, 388 U.S. 263, 272 n. 3, 87 S.Ct. 1951, 18 L.Ed.2d 1178" }, { "docid": "9766910", "title": "", "text": "the definition of hearsay. Because statements that qualify under Rule 801(d) are defined as nonhearsay, they are admissible as substantive evidence. Rule 801(d)(1)(B) provides: A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declar-ant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... In Tome v. United States, the Supreme Court construed narrowly the exception to the hearsay rule embodied in Rule 801(d)(1)(B), holding that “[t]he Rule permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those state ments were made before the charged recent fabrication or improper influence or motive.” 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Following Tome, we have characterized the requirements of Rule 801(d)(1)(B) as follows: (1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose. United States v. Collicott, 92 F.3d 973, 979 (9th Cir.1996); see also United States v. Frederick, 78 F.3d 1370, 1377 (9th Cir.1996) (holding that prior consistent statements are admissible under Rule 801(d)(1)(B) “only if offered to rebut a charge of recent fabrication or improper influence or motive”). Johnson contends that Amaya-Flores’s statement to Agent Proenca does not meet the fourth requirement of Collicott’s Rule 801(d)(1)(B) framework. Johnson’s defense at trial was that Amaya-Flores had consented to — indeed, had initiated — the oral sex. As part of that defense, he contended that Amaya-Flores fabricated her story because she wanted to stay in the United States for the duration of the investigation and trial. In support of" }, { "docid": "14637781", "title": "", "text": "clear showing of an abuse of discretion.” United States v. Prieto, 232 F.3d 816, 819 (11th Cir.2000), cert. denied, 534 U.S. 950, 122 S.Ct. 345, 151 L.Ed.2d 260 (2001). Ettinger argues that the district court erred in allowing the introduction of Barnes’s testimony about the statement he gave the FBI agent. This argument fails. The plain language of Rule 801(d)(1)(B) states: (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Fed.R.Evid. 801(d)(1)(B). Barnes’s statement contained in the FBI report was admissible as a prior consistent statement. Barnes testified at trial and was therefore subject to cross examination. The statement was consistent with Barnes’s testimony because both in his testimony and in the FBI report, he indicated that shortly after the altercation, Ettinger stated something regarding telling Turner he was “go ing to get him.” Furthermore, during cross-examination, Ettinger implied that Barnes had fabricated hearing such a statement. Barnes’s statement made to the FBI agent was therefore admitted properly to rebut an implied charge of recent fabrication, pursuant to Fed.R.Evid. 801(d)(1)(B). Thus, the district court did not abuse its discretion by admitting Barnes’s statement contained in the FBI report. C. Motion For Mistrial This Court reviews the district court’s denial of a motion for mistrial for an abuse of discretion. United States v. Diaz, 248 F.3d 1065, 1101 (11th Cir.2001). Typically, a defendant is entitled to a grant of mistrial only upon a showing of substantial prejudice. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir.1999), cert. denied, 532 U.S. 996, 121 S.Ct. 1658, 149 L.Ed.2d 640 (2001). However, a showing a prejudice is not required where the defendant claims that a mistrial was mandated because of an actual conflict of interest. United States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980), cert. denied," }, { "docid": "12031970", "title": "", "text": "preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court. Id. at 368. Although this view has considerable support, it was not adopted by either the Military Rules of Evidence or the Federal Rules of Evidence. In describing statements which are not hearsay, MiLR.Evid. 801(d) and its twin Fed.R.Evid. 801(d) specify (1) certain prior statements by a “declarant [who] testifies at the trial or hearing and is subject to cross-examination concerning the statement” and (2) certain admissions by a party-opponent. To fit within the first category, the statement must be: (A) inconsistent with the declarant’s testimony, and ... given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person. Mil.R.Evid. 801(d)(1); Fed.R.Evid. 801(d)(1). By implication, any other prior statement by a witness is hearsay. Accordingly, it is not admissible except as provided by some other rule. See Mil.R.Evid. 802. If such an exception exists, it must be found in Mil.R.Evid. 803 (hearsay exceptions; availability of declarant immaterial) or Mil.R. Evid. 804 (hearsay exceptions; declarant unavailable). Clearly, Kennedy and Diaz were not “unavailable” — as that term is defined by Mil.R.Evid. 804(a). This leaves only Mil.R.Evid. 803; and, in turn, the only hearsay exception that might fit here is Mil.R.Evid. 803(24) — the “residual exception.” Indeed, this was the exception on which trial counsel and the military judge relied for admission of the earlier statements by" }, { "docid": "9766909", "title": "", "text": "250 F.3d 720, 725 (9th Cir.2001), we join our sister circuits and hold that we review a district court’s determination of admissibility under Rule 801(d)(1)(B) for abuse of discretion. See United States v. Prieto, 232 F.3d 816, 819, 822 (11th Cir.2000); United States v. Roach, 164 F.3d 403, 411 (8th Cir.1998); United States v. Fulford, 980 F.2d 1110, 1114 (7th Cir.1992); see also United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.2001) (holding that the admission of evidence under an “exception to the hearsay rule” is reviewed for abuse of discretion). Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Agent Proenca’s testimony that Amaya-Flores told him that she had not consented to the oral sex would ordinarily fall within the scope of Rule 801(c) because Amaya-Flores’s out-of-court statement to Agent Proenca was offered for the truth of the matter asserted. Rule 801(d), however, excludes certain statements from the definition of hearsay. Because statements that qualify under Rule 801(d) are defined as nonhearsay, they are admissible as substantive evidence. Rule 801(d)(1)(B) provides: A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declar-ant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... In Tome v. United States, the Supreme Court construed narrowly the exception to the hearsay rule embodied in Rule 801(d)(1)(B), holding that “[t]he Rule permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those state ments were made before the charged recent fabrication or improper influence or motive.” 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Following Tome, we have characterized the requirements of Rule 801(d)(1)(B) as follows: (1) the declarant must testify at trial and be subject to cross-examination;" }, { "docid": "23539021", "title": "", "text": "and (4) the Government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by fading to disclose evidence to Collicott about Zaidi’s involvement in previous drug deals. DISCUSSION I. Kehl’s Testimony Regarding Prior Statements Made by Zaidi Collicott contended at trial and on appeal that the district court erred in admitting hearsay by Kehl, which violated the rules of evidence and his constitutional confrontation rights. The Government responded at trial that the statements were admissible under Fed.R.Evid. 609(b), which obviously does not apply. On appeal, the Government argues that the district court properly admitted Kehl’s testimony under two theories. First, Rule 801(d)(1) permits the Government to cross-examine Kehl with respect to other statements made by Zaidi at the time of the interview with Kehl because Collicott “opened the door” to the entire conversation between Kehl and Zaidi by questioning Kehl regarding specific statements from the conversation. Second, Zaidi’s statements to Kehl were not hearsay under Rule 803(5) as a past recollection recorded. Whether the district court correctly construed the hearsay rule is a question of law reviewable de novo. United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.1995). However, district courts are granted broad discretion in admitting evidence, and their rulings are reviewed only for an abuse of discretion. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.1995). A. Rule 801(d)(1) Rule 801(d)(1) reads in its entirety: A statement is not hearsay if— (1) Prior statement by a witness. The deelarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person * * *. Subsection (A) is not applicable here because Zaidi’s statements to Kehl were not" }, { "docid": "18455655", "title": "", "text": "III. Hearsay Goldman’s and Stern’s testimony would traditionally have been characterized as hearsay. They repeated the extra judicial declarations of Lioi relating what the defendant said to prove what defendant said. This is hearsay ' under Rules 801(a), (b) and (c) of the Federal Rules of Evidence reading: “Rule 801 Definitions The following definitions apply under this article: (a) Statement. A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. A ‘declarant’ is a person who makes a statement, (c) Hearsay. ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Exceptions to this rule provide three independent routes by which the rebuttal witnesses’ reports of Mr. Lioi’s out of court statements to them may be admitted as evidence in chief. A. Consistent statement to rebut charge of fabrication Under Rule 801(d)(1)(B) prior consistent statements of a witness testifying and subject to cross-examination concerning his statements are not hearsay when offered under certain circumstances to support credibility. It reads: “(d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive . . . . ” The rebuttal evidence meets the three conditions of Rule 801(d)(1)(B). First, the declarant, Mr. Lioi, testified at the trial and was subject to cross-examination about the February 10th- meeting. Second, Mr. Goldman’s and Mr. Stern’s testimony was consistent with Mr. Lioi’s testimony about the defendant’s solicitation of a bribe. Third, the evidence rebutted an implied charge of improper motive. The defendant’s account of his February 10th conversation with Mr. Lioi contradicted Mr. Lioi’s account both in matters of major importance and in details. The total variance between the" }, { "docid": "23539022", "title": "", "text": "rule is a question of law reviewable de novo. United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.1995). However, district courts are granted broad discretion in admitting evidence, and their rulings are reviewed only for an abuse of discretion. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.1995). A. Rule 801(d)(1) Rule 801(d)(1) reads in its entirety: A statement is not hearsay if— (1) Prior statement by a witness. The deelarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person * * *. Subsection (A) is not applicable here because Zaidi’s statements to Kehl were not made under oath in a prior proceeding. Likewise, subsection (C) is also irrelevant because the challenged testimony did not involve prior identifications. Therefore, by arguing that Rule 801(d)(1) permits inquiry into the entire conversation between Zaidi and Kehl, the Government must be relying specifically on Rule 801(d)(1)(B). The Supreme Court recently emphasized that admissibility of prior consistent statements under Rule 801(d)(1)(B) is “confined to those statements offered to rebut a charge of ‘recent fabrication or improper influence or motive * * ” Tome v. United States, — U.S. —, —, 115 S.Ct. 696, 701, 130 L.Ed.2d 574 (1995) (quoting Rule 801(d)(1)(B)). Prior consistent statements by a witness “may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited.” Id. Consequently, under Rule 801(d)(1)(B), the prior consistent statements must rebut the charge of improper motive, not merely “bolster[] the veracity of the story told.” Id. Furthermore, the Supreme Court added a temporal element to Rule 801(d)(1)(B), holding that “[t]he Rule permits the introduction of a declarant’s" }, { "docid": "6215787", "title": "", "text": "trial. First, appellant argues that some of the grand jury testimony was not “inconsistent” with the trial testimony, and was thus erroneously submitted to the jury as substantive evidence of guilt under Fed.R. Evid. 801(d)(1)(A). Rule 801(d)(1) provides: (d) A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; . . . Second, appellant argues that allowing any grand jury testimony to be considered as substantive evidence of guilt violates his Sixth Amendment right to an “open trial” and violates his due process right not to be convicted on the basis of unreliable evidence. The eyewitnesses who testified at appellant’s trial were predominantly associated with Highway Wrecking Co., which was carrying on the demolition at the site that we have referred to. This concern was operated by Frank Hornung, who happened to be a close friend of appellant. The eyewitnesses, who testified at appellant’s trial in late 1978, had also testified before the grand jury in mid-1977. During the one and one-half year hiatus between the grand jury proceedings and appellant’s trial many of the witnesses forgot portions of their grand jury testimony or remembered it with less certainty of detail. Accordingly, much of the grand jury testimony was introduced in evidence at appellant’s trial and was considered by the jury as substantive evidence of guilt in accordance with Fed.R. Evid. 801(d)(1). With regard to appellant’s assertion that some of the grand jury testimony was erroneously admitted under Rule 801(d)(1)(A) because it was not inconsistent with in-court testimony, our review of the record convinces us that the trial court did not abuse its discretion" }, { "docid": "14049638", "title": "", "text": "appellant’s picture shortly after the bank robbery. Appellant offers a number of objections to this evidence. Citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), he first argues that the display was so impermissibly suggestive as to warrant exclusion. The argument is without merit. Ten photographs were originally shown to Mrs. Sharpe. All were of black males, facing front, wearing eyeglasses. The claim that there was no significant resemblance between them and defendant is simply frivolous. Also, while it is true that a yardstick measuring device appears only in defendant’s photograph, the device is inconspicuous and insignificant. In short, the spread was neither suggestive nor unfair. Cf. United States v. Bubar, 567 F.2d 192, 198 (2d Cir. June 30, 1977); United States v. Boston, 508 F.2d 1171, 1176-78 (2d Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975). Appellant next argues that the identification testimony should have been excluded as hearsay, and is not permitted by the new Federal Rules of Evidence. Appellant directs our attention to Rule 801(d), which contains various definitions, and provides in relevant part that: (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him ; . . . (Emphasis supplied). Appellant argues that Agent Farrell’s testimony should have been excluded because “identification of a person made after perceiving him” contemplates only corporeal, not photographic, identification; and because it was improper to allow Farrell to testify in the absence of an in-court identification by Mrs. Sharpe. Appellant also claims that Mrs. Sharpe’s testimony" }, { "docid": "9464651", "title": "", "text": "Tabs 17, 19, and 23). In its motion to strike, the defendant objects that these letters are inadmissible hearsay. The plaintiffs only response is that these physicians will be witnesses at trial and that their letters are not hearsay pursuant to Fed. R.Evid. 801(d)(1). Presumably, the plaintiff relies on Rule 801(d)(1)(B) as the letters are neither sworn (d)(1)(A) nor statements of identification (d)(1)(C). All of these letters are inadmissible hearsay. Rule 801(c) defines hearsay as \"a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” \"Hearsay is not admissible at trial, except as provided by the Federal Rules of Evidence or other statutory authority.” United States v. Cass, 127 F.3d 1218, 1222 (10th Cir.1997) (citing Fed.R.Evid. 802), cert. denied, - U.S. -, 118 S.Ct. 1101, 140 L.Ed.2d 155 (1998). Under Fed.R.Evid. 801(d)(1)(B), a prior statement by a witness is admissible if: (1) the witness testifies at trial and is subject to cross-examination concerning the statement; and (2) the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. \"Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited. ... The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.” Tome v. United States, 513 U.S. 150, 157-58, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Absent any charge of recent fabrication or improper influence or motive, a prior consistent statement is inadmissible. United States v. Asher, 854 F.2d 1483, 1499 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989); see United States v. Beltran, 165 F.3d 1266, 1272 (9th Cir. 1999) (Kozinski, J., concurring), petition for cert. denied, - U.S. -, 120 S.Ct. 194, - L.Ed.2d - (1999). The plaintiff furnishes the court with no basis for believing that at trial these physicians will be charged, expressly or impliedly, with fabrication or" }, { "docid": "1725668", "title": "", "text": "initially declined to allow the tape, but warned defense counsel that questioning on cross examination of Officer Twitchell might render the tape admissible as a prior consistent statement under Rule 801(d)(1)(B) of the Federal Rules of Evidence. On appeal Young renews his hearsay objection to the tape. We review the district court’s evi-dentiary rulings for abuse of discretion. See United States v. Alzanki, 54 F.3d 994, 1008 (1st Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 909, 133 L.Ed.2d 841 (1996). Rule 801(d)(1)(B) provides in relevant part: (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive Fed.R.Evid. 801(d)(1)(B). For Rule 801(d)(1)(B) purposes, we view the lower court’s determination that a statement rebuts an express or implied charge of recent fabrication as a finding of fact, subject to reversal only if it proves clearly erroneous. United States v. Piva, 870 F.2d 753, 758 (1st Cir.1989). During direct examination of Officer Twitehell the government sought to introduce the turret tape. The district judge declined to allow the tape at that time, but indicated that cross examination of Officer Twitehell could render the tape admissible as a Rule 801(d)(1)(B) prior consistent statement. During cross examination, Young’s counsel elicited testimony from Officer Twitehell that, prior to his recovery of the firearm, he had never broadcast (a) that he and Officer Fee saw a gun in Young’s waistband, and (b) that he had seen Young throw the handgun during the pursuit. The government argued that' through those questions defense counsel implied that Officer Twitehell fabricated seeing Young possess the gun, and moved on redirect to play the turret tape as a prior statement consistent -with his testimony. Officer Twite-hell testified that he saw Young throw the gun, and on the tape, states the same observation. The district court found" }, { "docid": "22786162", "title": "", "text": "the antecedent declaration of the party may be admitted.” Ellicott v. Pearl, 10 Pet. 412, 439 (1836) (emphasis added). See also People v. Singer, 300 N. Y. 120, 124-125, 89 N. E. 2d 710, 712 (1949). McCormick and Wigmore stated the rule in a more categorical manner: “[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” E. Cleary, McCormick on Evidence §49, p. 105 (2d ed. 1972) (hereafter McCormick). See also 4 J. Wigmore, Evidence §1128, p. 268 (J. Chadbourn rev. 1972) (hereafter Wigmore) (“A consistent statement, at a time prior to the existence of a fact said to indicate bias . . . will effectively explain away the force of the impeaching evidence” (emphasis in original)). The question is whether Rule 801(d)(1)(B) embodies this temporal requirement. We hold that it does. A Rule 801 provides: “(d) Statements which are not hearsay. — A statement is not hearsay if— “(1) Prior statement by witness. — The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is .. . “(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Rule 801 defines prior consistent statements as nonhear-say only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.” Fed. Rule Evid. 801(d)(1)(B). Noting the “troublesome” logic of treating a witness’ prior consistent statements as hearsay at all (because the declarant is present in court and subject to cross-examination), the Advisory Committee decided to treat those consistent statements, once the preconditions of the Rule were satisfied, as nonhearsay and admissible as substantive evidence, not just to rebut an attack on the witness’ credibility. See Advisory Committee’s Notes on Fed. Rule Evid. 801(d)(1), 28 U. S. C. App., p. 773. A consistent statement meeting the requirements of the Rule is thus placed in the same category as" }, { "docid": "22786163", "title": "", "text": "statement by witness. — The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is .. . “(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Rule 801 defines prior consistent statements as nonhear-say only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.” Fed. Rule Evid. 801(d)(1)(B). Noting the “troublesome” logic of treating a witness’ prior consistent statements as hearsay at all (because the declarant is present in court and subject to cross-examination), the Advisory Committee decided to treat those consistent statements, once the preconditions of the Rule were satisfied, as nonhearsay and admissible as substantive evidence, not just to rebut an attack on the witness’ credibility. See Advisory Committee’s Notes on Fed. Rule Evid. 801(d)(1), 28 U. S. C. App., p. 773. A consistent statement meeting the requirements of the Rule is thus placed in the same category as a declarant’s inconsistent statement made under oath in another proceeding, or prior identification testimony, or admissions by a party opponent. See Fed. Rule Evid. 801. The Rules do not accord this weighty, nonhearsay status to all prior consistent statements. To the contrary, admissibility under the Rules is confined to those statements offered to rebut a charge of “recent fabrication or improper influence or motive,” the same phrase used by the Advisory Committee in its description of the “traditiona[lj” common law of evidence, which was the background against which the Rules were drafted. See Advisory Committee’s Notes, supra, at 773. Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited. In the present context, the question is whether A. T.’s out-of-court statements rebutted the alleged link between her desire to be with her mother and her testimony, not whether they suggested that A. T.’s in-court testimony was true. The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity" }, { "docid": "14173138", "title": "", "text": "We next consider whether allowing Garcia to characterize his grand jury testimony as truthful was inadmissible hearsay. Although we review decisions admitting evidence for abuse of discretion, United States v. Elkins, 70 F.3d 81, 82 (10th Cir.1995), objections must “substantially satisffy] the requirement of putting the court on notice” of the grounds for objection. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174, 109 S.Ct. 439, 452, 102 L.Ed.2d 445 (1988); Fed. R.Evid. 103(a)(1). The colloquy at issue reads: Q. Did you also testify before the grand jury? A. Yes, I did. Q. Can you tell the jury whether or not you provided truthful answers to the grand jury questions? A Yes, I did. Q. I believe my last question to you, Mr. Garcia, was, could you tell the jury whether or not you provided the grand jury with the same detailed information as you have provided this jury? A. No, the information that I’ve provided here is more detailed. II App. 216-19 (L. Garcia Tr.). At trial, defense counsel objected to this evidence “to rehabilitate a witness that hasn’t been impeached,” thereby prematurely bolstering his credibility. Id. at 218. On appeal, defendant argues the statement did not meet the requirements of Fed.R.Evid. 801(d)(1)(B) and was inadmissible hearsay. Because the objection did not notify the district court that defendant’s objection was based on this rule, we review this evidentiary ruling for plain error. United States v. Barbee, 968 F.2d 1026, 1030-31 (10th Cir.1992). Rule 801(d)(1)(B) reads as follows: (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declar- ant of recent fabrication or improper influence or motive. “Statement” is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Fed.R.Evid. 801(a). The government’s inquiry did not require Garcia" }, { "docid": "4398977", "title": "", "text": "Rozzi, over defendant’s objection, to testify about the statements .Holly made to him on October 13, 1993 concerning appellant’s commission of the four bank robberies. The court admitted this evidence under the hearsay exception provided in Fed.R.Evid. 801(d)(1)(B) because it corroborated Holly’s earlier testimony. The rule provides: Rule 801. Definitions The following definitions apply under this article: (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A “declarant” is a person who makes a statement. (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declar-ant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... The rule obviously does not apply to prior statements of a witness introduced merely to “corroborate” testimony already given by the declarant and heard by the jury. The statement given by Holly to Rozzi and about which Holly was allowed to testify was given on October 13,1993, approximately five months after Holly had been arrested. The statement was also given after he was indicted for conspiring with the appellant to rob the Central Carolina Bank and while he and his attorney were attempting to negotiate a plea bargain which required his testimony against the appellant. Rule 802 provides: “Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or act of Congress.” The testimony of Officer Rozzi" }, { "docid": "7324268", "title": "", "text": "(2) the error is plain; (3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity or public reputation of a judicial proceeding. See United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1775-76, 123 L.Ed.2d 508, (1993). We therefore review the district court’s use of the Eleventh Circuit Pattern Jury Instruction for plain error. A. Rule 801(d)(1)(B): Hearsay Exception Palacios was arrested on October 24, 1996. He gave a statement on the evening of his arrest, signed a cooperation agreement with the Government in November of 1996, and ultimately pled guilty in April of 1997. Palacios became one of the government’s key witnesses against Prieto, testifying extensively concerning Prieto’s involvement in the attempted UPS truck robberies. To bolster Palacios’s testimony, the Government sought to offer the testimony of Metro-Dade Police Detective Joseph Gross, regarding prior consistent statements Palacios made on the evening of his arrest. Though Palacios’s statements would ordinarily be inadmissible hearsay, the government sought to introduce them to rebut a charge of recent fabrication pursuant to Rule 801(d)(1)(B). Rule 801(d)(1)(B) provides, in pertinent part, that a prior consistent statement by a witness is not hearsay if (1) the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and (2) the statement is consistent with the declar-ant’s testimony and is offered to rebut an express or implied charge against the de-clarant of recent fabrication or improper influence or motive. Fed.R.Evid. 801(d)(1)(B). In Tome v. United States, 513 U.S. 150, 157-58, 115 S.Ct. 696, 701, 130 L.Ed.2d 574 (1995), the Supreme Court held that to be admissible pursuant to Rule 801(d)(1)(B), prior consistent statements must have been made before the alleged influence or motive to fabricate arose. The central question raised by this appeal is whether Palacios had a motive to fabricate in order to curry favor with the government at the time he made his statements to Detective Gross. In order to decide this question, the trial judge heard argument outside the presence of the jury" } ]

[ { "docid": "14430800", "title": "", "text": "to characterize the access policy as based on the status of the respective unions rather than their views.” -U.S. at-, 103 S.Ct. at 957, 74 L.Ed.2d at 807. Similarly, Memphis American Federation of Teachers v. Board of Education of Memphis, 534 F.2d 699 (6th Cir.1976), involved privileges given to a majority union representing more than 66 percent of the employees, with exclusive bargaining rights under a collective bargaining agreement. The court noted, however, that “The grant of exclusive privileges by the Board to MEA did not involve the Board in regulating either the content or the subject matter of speech in its schools. The Board neither censored nor promoted a particular point of view.” 534 F.2d at 702. I believe that subsections (5), (6) and (7) of the statute all involve the State of Tennessee in promoting a particular point of view by favoring one union over another (neither union having a majority of employees or exclusive bargaining rights) on the basis of First Amendment ideas or associational rights. I would therefore analyze these subsections on the basis of a strict scrutiny equal protection analysis and would find these subsections unconstitutional. “[Ujnder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Police Department v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). See also Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471 (2d Cir.1976), where the Court said: Here, were there a discrimination in fact (i.e., one that puts the minority unions at an actual disadvantage in the competition for membership and majority status), between the CFT and CEA locals in their exercise of associational rights, the defendant school boards would be put to the test of demonstrating that the policies in question are necessary to further a compelling state interest. 538 F.2d at 483. Under a strict scrutiny analysis, I would find subsections (5) and (7), in" } ]

[ { "docid": "14164980", "title": "", "text": "to erect displays in Ackley Park. 72 F.3d at 1483. In conducting our forum analysis, we characterized the relevant forum as “Ackley Park during the ‘Christmas in the Park’ event” and held that the forum was a traditional public forum, in which “content-based restrictions on speech are valid only if necessary to serve a compelling state interest and if narrowly drawn to achieve that end.” Id. at 1487. Similarly, the fact that Summum seeks access to a particular means of communication (i.e., the display of a monument) is relevant in defining the forum, but it does not determine the nature of that forum. See Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 (“Having identified the forum ... we must decide whether it is nonpublic or public in nature.”). By applying the standard associated with a nonpublic forum, the District Court committed an error of law. In a nonpublic forum, content-based restrictions on speech are permissible as long as they do not discriminate on the basis of the speaker’s viewpoint and are reason able. Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948; see also Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (“Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”). But in a public forum, content-based restrictions are presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); see also Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.”). In order for a content-based restriction to survive strict scrutiny, the government must “show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. As we explain below, Pleasant Grove" }, { "docid": "7566912", "title": "", "text": "right to engage in free speech, strict scrutiny is warranted.” Brown, 543 F.Supp.2d at 485. Although it is true generally under the Equal Protection Clause that legislative actions are subject to strict scrutiny when they \"impermissibly interferef ] with the exercise of a fundamental right,” id. (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976)), this standard does not apply to content-neutral time, place, and manner restrictions valid under Ward's First Amendment test. Whereas strict scrutiny demands that a challenged regulation be the least restrictive means of achieving a compelling state interest, see ACLU, 534 F.3d at 190, Ward’s intermediate-scrutiny standard asks whether a content-neutral time, place, and manner regulation is narrowly tailored (but not necessarily the least intrusive means) to serve a significant state interest. If every time, place, and manner regulation were subject to strict scrutiny under the Equal Protection Clause simply because it burdened constitutionally protected speech, Ward's intermediate-scrutiny test would be rendered obsolete. Instead, it is only content-based time, place, and manner regulations that call for strict scrutiny— whether viewed through the lens of First Amendment or Equal Protection doctrine. See McCullen, 571 F.3d at 178 n. 2 (explaining that the Court's conclusion that the challenged statute was facially content-neutral \"also serves to defeat the plaintiffs' equal protection” claim); McGuire I, 260 F.3d at 49 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), for the proposition that “the equal protection interests involved in the differential treatment of speech are inextricably intertwined with First Amendment concerns”). Supreme Court precedent supports this view. Where the Court has applied strict scrutiny to time, place, and manner regulations under the Equal Protection Clause, the restrictions were content-based. See, e.g., Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (invalidating statute that generally prohibited picketing of residences or dwellings but exempted peaceful picketing of employment sites involved in labor disputes); Mosley, 408 U.S. 92, 92 S.Ct. 2286 (invalidating ordinance that proscribed picketing near schools, with exemption for schools" }, { "docid": "402078", "title": "", "text": "violate the First Amendment. B. The Equal Protection Guarantee of the Fifth Amendment’s Due Process Clause The district court also found that the Act violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Specifically, it found that the Act’s disparate treatment of books and periodicals (barring only the latter), and its restrictions on pictorial and audio expression, but not on written text, violated the Fifth Amendment’s guarantee of equal protection. See General Media, 952 F.Supp. at 1082. We approach equal protection claims under the Fifth Amendment in the same way as we would such claims under the Fourteenth Amendment. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). In considering whether legislation violates equal protection principles, “[a]t a minimum, a statutory classification must be rationally related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988). Under this analysis, a statutory classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). Classifications affecting fundamental rights, however, must survive heightened scrutiny. Id. The Supreme Court has noted that “[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980) (emphasis supplied) (finding equal protection violation based on discrimination among expressive activities in public forum); see also Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96-97, 92 S.Ct. 2286, 2290-91, 33 L.Ed.2d 212 (1972) (same). That exacting standard of review is not applicable here, however, because “[t]he key to those decisions [Carey and Mosley ] ... was the presence of a public forum.” Perry, 460 U.S." }, { "docid": "18561062", "title": "", "text": "a foreign government into “public odium” or “public disrepute.” Their legal challenge relies heavily on this element of the statute as the root of its constitutional infirmity, raising claims grounded in the first amendment guarantees of free speech and assembly and the fourteenth amendment guarantee of equal protection. Content-based restrictions have been held to raise both first and fourteenth amendment claims because in the course of regulating speech, they differentiate between types of speech. Compare Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (exclusion of religious speech from public forum violates first amendment right of free speech) with Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (exemption of labor picketing from ban on picketing near schools violates fourteenth amendment right of equal protection). Under either theory, such a statute is valid only if “necessary to serve a compelling state interest and ... narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); accord Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980). Appellants do not concede that this is the relevant test. Instead, they point to language in Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and Regan v. Time, 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984), which might seem to suggest a total ban on content-based restrictions of any sort. Were appellants correct, first amendment law would have been revolutionized. The Court, it would have to be supposed, has overruled subsilentio New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (heightened protection accorded writings about “public figures”), Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L,Ed.2d 195 (1968) (upholding obscenity regulation), and Chaplinsky v. New Hamsphire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (upholding prohibition of use of “fighting words”), as well as a host of other decisions too numerous to mention" }, { "docid": "23053880", "title": "", "text": "casino gambling in Detroit, Michigan. Id. at 400. After the ballot measure passed, the Detroit City Council adopted an ordinance giving preference for casino licenses to developers who had actively promoted the ballot initiative. Id. at 401. The Lae Vieux Desert Band of Lake Superior Chippewa Indians — a potential casino developer that had not lobbied for passage of the ballot initiative but wanted a casino license — challenged the ordinance on First Amendment grounds. Id. at 402. The Sixth Circuit held that the ordinance “impose[d] a burden based on the content of political speech” and that the ordinance was content based and therefore subject to strict scrutiny. Id. at 409-10. The majority dismisses Lac Vieux in a footnote, reasoning that it “did not reward the achievement of the enforcement of government policy through litigation, but instead involved ‘political support’ for legislative efforts.” Maj. Op. at 1356 n. 32. I agree that an ITC investigation is not an election by ballot initiative, but I do not think that this distinction is of any significance. “[T]he free discussion of governmental affairs” protected by the First Amendment encompasses more than merely campaigning. Mills, 384 U.S. at 218, 86 S.Ct. 1434. Moreover, because the ITC requires domestic producers to provide their views on a petition and is required to take those views into account, the petition support requirement, like the ordinance in Lac Vieux, does concern a company’s “political support” for a proposition (as in Lac Vieux) or a petition (as in this case). I would conclude that because the petition support requirement is viewpoint discriminatory toward political speech in a public forum, it is subject to strict scrutiny. To survive, it must be “necessary to serve a compelling state interest and ... narrowly drawn to achieve that end.” Perry, 460 U.S. at 45, 103 S.Ct. 948. Even assuming that the interests asserted by the majority (reward for assistance) and the government (remedy for the most seriously injured domestic producers) were compelling, I cannot conclude that the petition support requirement is narrowly drawn to achieve either. As discussed in detail above, less restrictive" }, { "docid": "18561115", "title": "", "text": "82 L.Ed.2d 487 (1984); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The government must demonstrate that the statute “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). As part of the “necessary” and “narrowly drawn” inquiries, the govern.ment must show that “no adequate alternative” exists that would be less restrictive of speech. Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980). See also Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1331 (5th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). In short, whenever the government has regulated speech on the basis of content, the Court has applied the “most exacting scrutiny,” Widmar, 454 U.S. at 276, 102 S.Ct. at 277 “to determine whether there is any method of achieving the state’s ... purposes ... which has a lesser effect on protected expression.” Tacynec v. City of Philadelphia, 687 F.2d 793, 798 (3d Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 819, 74 L.Ed.2d 1016 (1983). There is no doubt that D.C.Code § 22-1115 is a content-based statute. It prohibits only demonstrations involving signs that hold the foreign government up to public odium or disrepute, while allowing signs that do not. In their briefs and arguments before this court, “[n]either appellees nor amicus disputefd] the fact that § 22-1115 is a content based act.” Brief for Amicus Curiae United States of America at 16. The majority recognizes this. See maj. op. at 1475. B. The Law of Nations Before proceeding to analyze the “compelling” interests advanced by the D.C. government in support of the statute, I will address the linchpin in the majority’s rationale for upholding the statute: that the United States has a" }, { "docid": "14164981", "title": "", "text": "Ass’n, 460 U.S. at 49, 103 S.Ct. 948; see also Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (“Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”). But in a public forum, content-based restrictions are presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); see also Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.”). In order for a content-based restriction to survive strict scrutiny, the government must “show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. As we explain below, Pleasant Grove has failed to justify its restriction on speech under this standard. 2. Application of strict scrutiny to content-based restrictions in a traditional public forum Pleasant Grove concedes that its restriction on speech in the park is content based. By requiring that monuments meet the city’s historical relevance criteria, the city excludes monuments on the basis of subject matter and the speaker’s identity. Because the city’s restrictions are content based, they may not be analyzed under the less exacting intermediate scrutiny applied to content-neutral restrictions regulating the time, place, or manner of expression in public forums. Id. We must therefore determine whether Pleasant Grove has demonstrated that application of its historical relevance criteria will, “more likely than not, be justified by the asserted compelling interests.” Gonzales, 126 S.Ct. at 1219; see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (“When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged" }, { "docid": "3022018", "title": "", "text": "in an integrated informational sign. The same is true of “organizational signs.” Because they are defined as “devoted exclusively to the identification of national, state, and local service clubs,” private clubs, or even international service clubs, may not have an organizational sign that identifies the club, its location, and its meeting times. Second, this Court is not striking down the entire ordinance merely because these two provisions are unconstitutional; rather, the entire ordinance is invalid because it is so riddled with content-based distinctions, see supra, that the offending portions cannot be severed without disrupting the entire ordinance. See infra. It is well-settled that a statute challenged on equal protection grounds at a minimum must pass rational-basis review; i.e., it must be rationally related to a legitimate government purpose. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (citations omitted). Quasi-suspect classifications, such as those based on gender or illegitimacy, receive intermediate scrutiny. Id. (citations omitted). Suspect classifications, such as those based on race or national origin, as well as those classifications that affect fundamental rights, are subject to strict scrutiny. Id. (citations omitted). Where an ordinance affects rights protected under the First Amendment, strict scrutiny is applied “because it implicates a constitutionally protected fundamental right, the right to freedom of speech.” Lac Vieux Desert Band of Lake Superior Chippeioa Indians, 172 F.3d at 410 (citing cases). The City, even in its objections to the Report and Recommendation, has not advanced a compelling interest that is served by the distinctions between speakers in these provisions; nor has the City shown that those distinctions are the least restrictive means for serving any purported interests. Even assuming that the City’s interests of safety and aesthetics are the reasons for the distinctions, these distinctions are not “necessary” to serve these interests. In fact, the distinctions do not seem to be even “rationally related” to the City’s interests. It is beyond reason to think the signs of public or semi-public entities are inherently safer or more aesthetically pleasing than the signs of business entities, or that the sign of" }, { "docid": "14737538", "title": "", "text": "narrowly drawn to achieve that end. We therefore remand this ease to the district court for further proceedings. We note that if the preference provisions are held to be unconstitutional, the district court will need to determine whether the offending provisions are severable from the remainder of the ordinance. III. Equal Protection Lac Vieux claims that the ordinance, by awarding preferential treatment to Atwater Entertainment and Greektown Casino because of the content of their political speech, denies Lac Vieux the equal protection of the laws of Michigan, in violation of the Fourteen Amendment to the United States Constitution and Article I, Section 2 of the Constitution of the State of Michigan. On appeal, Lac Vieux alleges that the district court erred in applying rational basis review in determining the merits of the equal protection claim. A statute challenged on equal protection grounds will be subject to strict scrutiny when the statute involves a “suspect” classification or has an impact on a “fundamental” right. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (“Classifications based on race or national origin and classifications affecting fundamental rights are given the most exacting scrutiny.”). If the statute does not involve a suspect classification or affect a fundamental right, then it will be subject to rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”). The district court found that the ordinance did not implicate the First Amendment, or any other fundamental right for that matter, and therefore applied rational basis review. However, in view of our holding that the ordinance does affect rights under the First Amendment, it follows that it is subject to strict scrutiny review&emdash;because it implicates a constitu- tionally protected fundamental right, the right to freedom of speech. See Carey v. Brown," }, { "docid": "23053873", "title": "", "text": "and it cannot shield the petition support requirement from First Amendment scrutiny. The government recognized as much at oral argument, remarking that “[t]he parties seem to be in agreement that this statute and the classification is really not that similar to the situation of [plaintiffs] in qui tam cases.” Oral Arg. at 1:03:42-1:04:36. Ill In my view, the petition support requirement should be subjected to strict scrutiny as a content-based restriction on political speech in a public forum. The principles that control the outcome of this case are beyond serious dispute. First, “a content-based, restriction on political speech in a public forum ... must be subjected to the most exacting scrutiny. Thus, [the government must] show that the ‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’ ” Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Second, “[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination.” Rosenberger v. Rector of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citation omitted). Third, under the so-called “unconstitutional conditions” doctrine, the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Taken together, these principles establish — at an absolute minimum — that a regulation is subject to strict scrutiny if it denies a benefit on the basis of expression of a specific viewpoint on a political matter in a public forum. Cf. Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 409-10 (6th Cir.1999) (holding that ordinance that “grants benefits and imposes burdens according" }, { "docid": "13304716", "title": "", "text": "no reason to believe it is not), the preference provision did not operate to the detriment of Barden at all. Mirage— the only developer adversely affected by the provision — might be able to allege an injury-in-fact; on the evidence before us, Barden cannot. This is not to suggest endorsement of either the preference provision or the release that prospective casino operators were required to sign. As for the ordinance itself, Lac Vieux held that it was subject to strict scrutiny on two counts. First Amendment strict scrutiny was held applicable because the ordinance conditions a governmental preference on political support for gaming initiatives (a content-based distinction). Lac Vieux, 172 F.3d at 409 (citing Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). Equal protection strict scrutiny was held applicable because the ordinance implicates a fundamental right— that of free speech. Id. at 410 (citing Carey v. Brown, 447 U.S. 455, 461—62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized”)). And the preference prescribed by the Detroit ordinance may not be too far removed from the sort of political patronage that the Supreme Court has repeatedly held unconstitutional. See Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The United States District Court for the Western District of Michigan has nonetheless upheld the Detroit ordinance against strict scrutiny challenges in the Lac Vieux case, Lac Vieux DeseH Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., No. 2:97-CV-67 (W.D.Mich., Jul. 17, 2000), appeal docketed, No. 00-1879 (6th Cir. Aug. 8, 2000), and we intimate no opinion one way or the other as to the correctness of that decision." }, { "docid": "20692767", "title": "", "text": "restrictions that violate Constitution); Henry v. Connolly, 910 F.2d 1000, 1004 (1st Cir.1990) (same). Furthermore, it is irrelevant that the statutory restriction is based upon a constitutional provision enacted by petition. The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation. Cf. Citizens Against Rent Control, 454 U.S. at 295, 102 S.Ct. at 436. Plaintiffs argue, essentially, that 1-40-112(1) is discriminatory. Under an equal protection analysis, classifications that impinge upon the exercise of a fundamental right are subject to the most exacting scrutiny. See, e.g., Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988). Plaintiffs do not bring an equal protection claim; nevertheless, when a statute allows some people to speak but not others, the principles of equal protection and free speech are intertwined. Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure 2d § 20.11, p. 48. Cf. Police Department of City of Chicago v. Mosley, 408 U.S. 92, 94-95, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972). The registration requirement has a discriminatory effect. It bars persons who are not registered voters from circulating petitions, thereby excluding that group of persons from participating in core political speech. See Meyer, 486 U.S. at 421-22, 108 S.Ct. at 1891-92. Colorado acknowledges there are at least 400,000 qualified but unregistered voters in the state. The mandatory exclusion of unregistered circulators also limits the number of voices to convey the proponent’s message, limiting the audience the proponents can reach and making it less likely they will be able to gather the required number of signatures to place a measure on the ballot. Cf. Meyer, 486 U.S. at 422-23, 108 S.Ct. at 1892-93. Consequently, we apply exacting scrutiny. Colorado fails to identify a compelling state interest to which its registration requirement is narrowly tailored. The state attempts to justify the registration requirement by arguing it has a compelling interest in ensuring circulators are residents so the regulatory system may be more easily policed (the secretary’s authority to issue subpoenas to circulators does not" }, { "docid": "14737539", "title": "", "text": "L.Ed.2d 465 (1988) (“Classifications based on race or national origin and classifications affecting fundamental rights are given the most exacting scrutiny.”). If the statute does not involve a suspect classification or affect a fundamental right, then it will be subject to rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”). The district court found that the ordinance did not implicate the First Amendment, or any other fundamental right for that matter, and therefore applied rational basis review. However, in view of our holding that the ordinance does affect rights under the First Amendment, it follows that it is subject to strict scrutiny review&emdash;because it implicates a constitu- tionally protected fundamental right, the right to freedom of speech. See Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“When gov- ernment regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”); Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Be- cause picketing plainly involves expressive conduct within the protection of the First Amendment, discriminations among pick- ets must be tailored to serve a substantial governmental interest.”); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (“ ‘[0]nly a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amend- ment freedoms.’”) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). As inthe First Amendment context, however, the defendants have not had the opportunity to try to show that the ordi- nance meets this test. We thus direct" }, { "docid": "14737537", "title": "", "text": "and only incidentally interferes with free speech or free expression, the regulation will be subject to a lesser standard of review. Time, place, and manner restrictions, for example, would fall within this second category of regulation. See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (quoting Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Although the district court and the parties have provided little guidance on the question, principally because the district court did not reach this issue, we conclude that the ordinance is content-based and is therefore subject to strict scrutiny. The government must therefore show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Precisely because the district court found that the First Amendment was not implicated and never reached this level of analysis, the defendants have not had the opportunity to make a showing that this regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. We therefore remand this ease to the district court for further proceedings. We note that if the preference provisions are held to be unconstitutional, the district court will need to determine whether the offending provisions are severable from the remainder of the ordinance. III. Equal Protection Lac Vieux claims that the ordinance, by awarding preferential treatment to Atwater Entertainment and Greektown Casino because of the content of their political speech, denies Lac Vieux the equal protection of the laws of Michigan, in violation of the Fourteen Amendment to the United States Constitution and Article I, Section 2 of the Constitution of the State of Michigan. On appeal, Lac Vieux alleges that the district court erred in applying rational basis review in determining the merits of the equal protection claim. A statute challenged on equal protection grounds will be subject to strict scrutiny when the statute involves a “suspect” classification or has an impact on a “fundamental” right. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100" }, { "docid": "11522426", "title": "", "text": "e.g., Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228 n. 3, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (invalidating, as violation of Press Clause, sales tax regime that taxed general interest magazines but exempted certain other journals, but noting that the First Amendment claims were “obviously intertwined with interests arising under the Equal Protection Clause”); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 94-95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (invalidating, as violation of Equal Protection Clause, anti-picketing law that “treat[ed] some picketing differently from others” because of its subject matter, but noting that “the equal protection claim in this case is closely intertwined with First Amendment interests”); Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (invalidating disorderly conduct convictions as violations of “the right to equal protection of the laws” in the exercise of Speech and Free Exercise Clause freedoms). Because this area of First Amendment doctrine (among others) is far from a model of clarity, the Court must first determine what level of scrutiny is appropriate. When deciding cases solely on First Amendment grounds, courts often require that “a significant impairment of First Amendment rights must survive exacting scrutiny.” Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.); see, e.g., Ark. Writers’ Project, 481 U.S. at 231, 107 S.Ct. 1722 (“In order to justify [content-based] differential taxation [of certain types of magazines], the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”); see also SKF USA Inc. v. U.S. Customs & Border Protection, 583 F.3d 1340, 1343 (Fed.Cir.2009) (Linn, J., dissenting from denial of rehearing en banc) (arguing, joined by three other judges, that congressional statute imposed “an unconstitutional viewpoint-discriminatory restriction on political speech and petitioning activity that cannot survive strict scrutiny”). Similarly, in cases decided on equal protection grounds, “statutes affecting First Amendment interests [must] be narrowly tailored to their legitimate objectives.” Mosley, 408 U.S. at 101, 92 S.Ct. 2286. But while some of these cases have" }, { "docid": "20872315", "title": "", "text": "Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). More specifically as relevant here, the Equal Protection Clause “protects against invidious discrimination among similarly-situated individuals or implicating fundamental rights.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir.2006). When objecting to how police officers effectuate an arrest warrant in this context, “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), quoted in Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir.1997). 1. Plaintiffs argue that state actions involving homosexuals should trigger some form of heightened scrutiny under the Equal Protection Clause. Heightened scrutiny is generally either “strict” or “intermediate.” State actions that treat individuals differently on the basis of a fundamental right trigger strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). For years, the Court held that a right is fundamental if it is “fundamental to our scheme of ordered liberty,” as evidenced by “whether this right is deeply rooted in this Nation’s history and tradition.” McDonald v. City of Chi., 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (emphasis and internal quotation marks omitted); see also Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (providing a similar formulation that the Supreme Court has occasionally employed in cases asserting unenumerated rights). Strict scrutiny requires the government to show that the challenged state action is narrowly tailored to achieve a compelling public interest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Strict scrutiny also applies to state actions that differentiate on the basis of a suspect classification, of which the Supreme Court recognizes only three: race, Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003); alienage, Graham v. Richardson, 403 U.S. 365, 371-72, 376, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); and national origin, Oyama v. California, 332 U.S. 633, 644-46, 68 S.Ct. 269, 92 L.Ed." }, { "docid": "11522427", "title": "", "text": "scrutiny is appropriate. When deciding cases solely on First Amendment grounds, courts often require that “a significant impairment of First Amendment rights must survive exacting scrutiny.” Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.); see, e.g., Ark. Writers’ Project, 481 U.S. at 231, 107 S.Ct. 1722 (“In order to justify [content-based] differential taxation [of certain types of magazines], the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”); see also SKF USA Inc. v. U.S. Customs & Border Protection, 583 F.3d 1340, 1343 (Fed.Cir.2009) (Linn, J., dissenting from denial of rehearing en banc) (arguing, joined by three other judges, that congressional statute imposed “an unconstitutional viewpoint-discriminatory restriction on political speech and petitioning activity that cannot survive strict scrutiny”). Similarly, in cases decided on equal protection grounds, “statutes affecting First Amendment interests [must] be narrowly tailored to their legitimate objectives.” Mosley, 408 U.S. at 101, 92 S.Ct. 2286. But while some of these cases have applied strict scrutiny and required the government to justify a disparate burden upon First Amendment rights by reference to a “compelling” interest, see, e.g., Williams v. Rhodes, 393 U.S. 23, 30-34, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (applying compelling interest test to invalidate state balloting law as equal protection violation of, inter alia, First Amendment assoeiational rights); Ruiz v. Hull, 191 Ariz. 441, 457, 957 P.2d 984 (Ariz.1998) (applying strict scrutiny to invalidate state constitutional amendment requiring government to “act” only in English, as equal protection violation of non-English speakers’ First Amendment petition rights), other cases have appeared to apply intermediate scrutiny and merely required that the challenged law further a “substantial” governmental interest. See, e.g., Mosley, 408 U.S. at 102, 92 S.Ct. 2286. And, in News America, the D.C. Circuit suggested a third approach when reviewing a mixed equal protection and First Amendment challenge to Congress’ power to direct an agency’s implementation of its statutory mandate: something less than strict scrutiny — and possibly less than intermediate scrutiny but greater than rational basis" }, { "docid": "14737536", "title": "", "text": "(1976). It does not matter that the ordinance involves prior speech rather than prospective speech or a preference rather than a guarantee, because it imposes a burden based on the content of political speech and, therefore, implicates the First Amendment. The First Amendment does not, however, preclude all regulation of speech. The right to free speech must be weighed against government and public interests. The appropriate test to be applied in conducting this balancing depends on the type of regulation at issue. When speech is regulated because of its content, that regulation will be subject to strict scrutiny review, unless the speech falls within certain unprotected categories of speech. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-383, 403, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Under strict scrutiny review, the government bears the burden of showing that its regulation is “necessary to serve a compelling state interest” and that it is “narrowly drawn to achieve that end.” Id. By contrast, when the regulation in question is intended to further some other interest, and only incidentally interferes with free speech or free expression, the regulation will be subject to a lesser standard of review. Time, place, and manner restrictions, for example, would fall within this second category of regulation. See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (quoting Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Although the district court and the parties have provided little guidance on the question, principally because the district court did not reach this issue, we conclude that the ordinance is content-based and is therefore subject to strict scrutiny. The government must therefore show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Precisely because the district court found that the First Amendment was not implicated and never reached this level of analysis, the defendants have not had the opportunity to make a showing that this regulation is necessary to serve a compelling state interest and is" }, { "docid": "18561114", "title": "", "text": "underinclusive. Moreover, even if its fit with those security interests were tighter, its viewpoint discrimination would still be constitutionally unjustifiable since a viewpoint-neutral regulation is readily available that would advance legitimate security interests in a manner far less restrictive of free speech values. Finally, Section IV turns to the second clause of the statute and concludes that its vesting in police officers of standardless discretion to disperse a congregating group is facially unconstitutional. I. The Appropriate Standard op Scrutiny A. Content-Based Distinctions “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). Unlike content-neutral time, place, or manner restrictions where the government has a relatively light burden to carry in justifying regulation, the government has an exceptionally heavy burden to bear when it seeks to justify a content-based restriction on speech. See Regan v. Time, Inc., 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The government must demonstrate that the statute “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). As part of the “necessary” and “narrowly drawn” inquiries, the govern.ment must show that “no adequate alternative” exists that would be less restrictive of speech. Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980). See also Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1331 (5th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). In short, whenever the government has regulated speech on the basis of content, the Court has applied the" }, { "docid": "1916182", "title": "", "text": "v. Bradley, 440 U.S. 93, 94 n. 1, 99 S.Ct. 939, 941 n. 1, 59 L.Ed.2d 171 (1979). Traditionally, courts have applied one of two different standards where a statute is challenged on equal protection grounds: strict scrutiny or rational basis. Hoffman v. United States, 767 F.2d 1431, 1434 (9th Cir.1985). Strict scrutiny is generally applied where the classification challenged in the statute is based on race, ancestry or alienage or the statute infringes upon a fundamental right. Id. Plaintiffs, relying on Police Department of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), claim that this Court should evaluate FACE under the strict'scrutiny standard because it infringes on the right of free speech. In Mosley, the Supreme Court considered an equal protection challenge to an ordinance regulating picketing next to a school. The ordinance allowed peaceful picketing on the subject of a school’s labor management dispute but prohibited any other peaceful picketing. The Court found that because the ordinance affected First Amendment interests, the Equal Protection Clause required that the ordinance be narrowly tailored to achieve its legitimate objectives. Id. at 101, 92 S.Ct. at 2293. Although the Court recognized that the City had an interest in preventing school disruption, the Court found that the City had failed to show that the ordinance was narrowly tailored because it had failed to show that “peaceful” nonlabor picketing was any more disruptive than “peaceful” labor picketing. Id. at 99-100, 92 S.Ct. at 2292. The distinction between Mosley and the case presently before the Court is that the Court finds that FACE does not infringe on a constitutionally protected right. As discussed in Section IV.B.l.a, supra, FACE does not regulate protected speech or expressive conduct. Consequently, the heightened standard of scrutiny applied in Mosley is not applicable and the rational basis test is to be applied instead. Clearly, in light of its legislative history, FACE withstands scrutiny under the rational basis test. Moreover, even if Mosley was applicable in this case and a heightened standard of scrutiny was to be applied, the Court finds that FACE" } ]

[ { "docid": "21089016", "title": "", "text": "they were injured by denial of the opportunity to compete for increased funding.) Furthermore, in 1998, at the time the complaint was filed, which is the point at which standing is determined, there was more than a speculative possibility that these injuries would recur. Plaintiffs Hagelin and Tompkins, who were the Natural Law Party’s nominees in 1992 and again in 1996, were likely to run again in the 2000 election. Indeed, by May 1999 they had declared their intention to run as candidates for the 2000 party nomination. Moore Decl. at ¶3. Moreover, even if Hagelin and Tompkins did not secure the nomination of the Natural Law Party, the Party itself was more than likely to field a presidential candidate in the 2000 election. Plaintiffs’ firm intentions to run in the 2000 election and again be exposed to the CPD’s criteria, contrasts sharply with the speculative plans of the plaintiffs in Renne v. Geary and Animal Legal Defense Fund v. Espy. Equally unfounded is defendant’s contention that plaintiffs should be denied standing on imminence grounds, since “[i]t is unsupported speculation to presume that the circumstances which led to their exclusion from the 1996 debates, such as low standing in the polls, will be the same ... in upcoming elections.” Motion at 11. Defendant misconstrues plaintiffs’ claim. Plaintiffs’ administrative complaint challenged the objectivity of the criteria used to select candidates. Whether plaintiffs are allowed to participate in future debates, they seek to change criteria that, in their view, systematically disadvantages minor party candidates in the debate’s candidate selection process. Presuming that this is true, as the Court must at this stage, application of criteria that is biased against minor party candidates increases the probability that plaintiffs will be unfairly excluded from future presidential debates, no matter what their level of popular support. Finally, defendant’s contention that an agency’s failure to act is not an injury in fact was rejected by the D.C. Circuit in Animal Legal Defense Fund v. Glickman: In this circuit, Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493 (D.C.Cir.1996), explicitly rejected the distinction between permissive and mandatory government" } ]

[ { "docid": "21088990", "title": "", "text": "criteria to determine which candidates may participate in a debate.” 11 C.F.R. § 110.13(c). In addition, the regulations prohibit staging organizations from using “nomination by a political party as the sole objective criteria to determine whether to include a candidate in a debate.” Id. Beginning with the debates leading up to the 1988 general election, the staging of candidate debates has been the responsibility of the Committee on Presidential Debates (CPD). CPD was formed in 1987 as a private non-profit corporation for the express purpose of sponsoring presidential debates. During the 1996 election season, CPD sponsored two presidential debates and one vice presidential debate. The only candidates invited to participate in the 1996 debates were President Clinton, the Democratic nominee for President, former Senator Robert Dole, the Republican nominee, and their vice presidential running mates. In choosing the participants for the 1996 debates, CPD selected the Democratic and Republican nominees based on “the historical prominence and sustained voter interest” in the two parties. With respect to the other, “non-major party” candidates for president, CPD’s criteria for selecting candidates that had a “realistic chance of being elected” included: evidence of national organization (such as placement on the ballot in enough states to have a mathematical chance of obtaining an electoral college majority), signs of national newsworthiness (based on the professional opinions of the Washington bureau chiefs of major newspapers and news organizations), and indicators of public enthusiasm (as reflected by public opinion polls). When applying these criteria to the field of eligible candidates, CPD found that no candidate, other than the nominees of the two major parties, stood a realistic chance of being elected. Thus, the only candidates who merited inclusion by the CPD in the 1996 debates were the two major party nominees. I. Case History On September 5, 1996, one month prior to the first presidential debate, scheduled for October 6, plaintiffs filed an administrative complaint with the FEC (designated MUR 4451), alleging that the CPD’s criteria for selecting candidates were not objective as required by 11 C.F.R. 110.13(c). Additionally, the complaint alleged that the CPD had violated 11" }, { "docid": "21089017", "title": "", "text": "since “[i]t is unsupported speculation to presume that the circumstances which led to their exclusion from the 1996 debates, such as low standing in the polls, will be the same ... in upcoming elections.” Motion at 11. Defendant misconstrues plaintiffs’ claim. Plaintiffs’ administrative complaint challenged the objectivity of the criteria used to select candidates. Whether plaintiffs are allowed to participate in future debates, they seek to change criteria that, in their view, systematically disadvantages minor party candidates in the debate’s candidate selection process. Presuming that this is true, as the Court must at this stage, application of criteria that is biased against minor party candidates increases the probability that plaintiffs will be unfairly excluded from future presidential debates, no matter what their level of popular support. Finally, defendant’s contention that an agency’s failure to act is not an injury in fact was rejected by the D.C. Circuit in Animal Legal Defense Fund v. Glickman: In this circuit, Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493 (D.C.Cir.1996), explicitly rejected the distinction between permissive and mandatory government regulation. There the plaintiff challenged the legality of Food and Drug Administration (“FDA”) regulations governing the approval of generic drugs. This court found that Bristol-Meyers Squibb (“BMS”) had standing to sue, on the ground that “[i]f BMS is correct [about its claim that the FDA’s regulations violate the governing statute], then it is no answer to say that the FDA is merely permitting a competitive product to enter the market and leaving the purchasing decision to the consumer.” See Telephone and Data Systems, Inc. v. FCC, 19 F.3d 42, 47 (D.C.Cir.1994) (“injurious private conduct is fairly traceable to the administrative action contested in the suit if that action authorized the conduct or established its legality”).” 154 F.3d 426, 442 (D.C.Cir.1998) (en banc). Thus, the FEC cannot argue that plaintiffs' suffer no injury from the agency’s denial of their administrative complaint. Plaintiffs claim to have been harmed by the application of CPD selection criteria that allegedly violates FEC regulations. If plaintiffs are correct, which is not the issue before the Court at this time, FEC’s ratification" }, { "docid": "21088988", "title": "", "text": "MEMORANDUM OPINION HUVELLE, District Judge. Plaintiffs, the Natural Law Party of the United States (Natural Law Party), along with Dr. John Hagelin and Dr. Mike Tompkins, the Natural Law Party’s 1996 candidates for President and Vice President, bring this action seeking judicial review of the Federal Election Commission’s (FEC) dismissal of their 1996 administrative complaint. In their complaint to the FEC, plaintiffs, who were excluded from participation in the 1996 presidential debates, challenged the candidate selection criteria used by the debates’ staging organization — the Committee on Presidential Debates (CPD). Plaintiffs contended that the criteria used by the CPD were not “objective” as required by FEC regulations. In 1998, the FEC, finding the criteria did not violate FEC regulations, dismissed the plaintiffs’ complaint. Plaintiffs now seek judicial review of the dismissal on the grounds that the agency’s decision was arbitrary, capricious, or otherwise contrary to law. Defendant has moved for summary judgment solely on the grounds that plaintiffs do not have standing to bring suit in this case. Upon review of the pleadings and the entire record herein, the Court finds that plaintiffs have standing to bring suit and defendant’s motion for- summary judgment is therefore denied. BACKGROUND The Federal Election Campaign Act of 1971 (FECA) prohibits any corporation from making “a contribution or expenditure in connection with” any federal election. 2 U.S.C. § 441b(a). “Contributions” include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. § 431(9)(A)(i). By regulation the term “anything of value” is defined to include “all in-kind contributions.” 11 C.F.R. § 100.7(a)(l)(iii)(A). The FEC, however, recognizing that “non-partisan debates are designed to educate and inform voters rather than to influence the nomination or election of a particular candidate,” issued a regulation exempting from § 441b(a)’s coverage funds that are expended in connection with the staging of non-partisan candidate debates. 11 C.F.R. § 100.7(b)(21). The regulation, which took effect on March 13, 1996, provides that certain non-profit organizations may stage presidential debates, provided they use “pre-established, objective" }, { "docid": "13446203", "title": "", "text": "about violations of the FECA, and that the judicial review section of the Administrative Procedure Act, 5 U.S.C. § 706, is inapplicable; 2) that plaintiffs failed to exhaust their administrative remedies by petitioning the Commission for a rule making on the Debate Regulations; and 3) that none' of the twelve plaintiffs can demonstrate Article III standing. The Commission on Presidential Debates (“CPD”), a nonprofit corporation which sponsored presidential and vice-presidential debates in 1988, 1992, and 1996, has filed a brief as amicus curiae. The CPD is the sponsor of the October 3 debate. According to the complaint, the CPD has solicited millions of dollars from for-profit corporations to help stage the presidential debates. On January 6, 2000, it announced that Anheuser-Busch will serve as one of the national financial sponsors for its 2000 presidential debates, as well as the sole sponsor for the debate scheduled for October 17, 2000 in St. Louis, Missouri. The CPD argues that the Debate Regulations are necessary to protect the First Amendment rights of private debate sponsors; that plaintiffs have failed to demonstrate wide-spread “influence and corruption” by corporations in CPD decision-making that would amount to irreparable harm; and that the public has a strong interest in having the debates go forward. After hearing, and review of the submissions, the Court DENIES both motions. Although Mr. Nader and the Green Party have standing, the Court concludes that the Debate Regulations are not contrary to law. DISCUSSION 1. Statutory Scheme The FECA makes it unlawful for any corporation “to make a contribution or expenditure in connection with any election” for federal, office. 2 U.S.C. § 441b(a). For purposes of § 441b, the statute defines the term “contribution or expenditure” to include “any direct or indirect payment, distribution, loan, advance, deposit, or gift of money or any services, or anything of value ... to any candidate, campaign committee or political party or organization, in connection with any election” to federal office. Id. § 441b(2). However, it excludes from the definition: (1) communications “on any subject” by a corporation to its stockholders and executive or administrative personnel and" }, { "docid": "21089005", "title": "", "text": "(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560, 112 S.Ct. 2130. Here, the FEC challenges plaintiffs’ constitutional standing on the grounds that (1) the injuries alleged by plaintiffs do not meet the injury in fact requirement of Article III; (2) plaintiffs’ injuries are not fairly traceable to the FEC, but instead are the result of independent actions by third parties, specifically the CPD; and, for the same reason (3) plaintiffs’ injuries cannot be effectively redressed by relief directed at the FEC. I. Injury in Fact Plaintiffs’ standing to bring suit must be based on “an injury stemming from the FEC’s dismissal of [their] administrative complaint.” Judicial Watch, 180 F.3d at 277; see also 2 U.S.C. § 437g(a)(8)(A). Defendant argues that plaintiffs have not established a “concrete and particularized” injury sufficient to meet the requirements of Article III standing because the 1996 debates from which Hagelin and Tompkins were excluded and the 1996 election were “long over” when the FEC denied plaintiffs’ complaint in 1998. Thus, according to defendants, “any injury to plaintiffs, whether based on their exclusion from those debates or on any benefit the other candidates may have received by participating, could not have been caused by the Commission’s dismissal of their administrative complaint more than a year later, and nothing can be done by the Court today to redress such past injuries.” Motion at 11. In addition, defendant argues, any alleged continuing harm from the CPD’s sponsorship of future debates is purely speculative because plaintiffs may not run in future elections, they might qualify for inclusion in future debates, the CPD might not sponsor future debates, or the Republican and Democratic candidates might refuse to participate in a future debate that included the Natural Law Party’s candidate. Plaintiffs allege three injuries in support of standing: (1) that they were denied the opportunity to be fairly considered for inclusion in the debates, (2) that they suffered a competitive political disadvantage relative to the major party candidates, and (3) that they suffered an informational injury due" }, { "docid": "21088997", "title": "", "text": "filed this action in April 1998, pursuant to 2 U.S.C. § 437g(a)(8)(A), seeking judicial review of the FEC’s dismissal on the grounds that the agency’s action was arbitrary, capricious and otherwise contrary to law. Defendant responded with the present motion for summary judgment, challenging plaintiffs’ standing to bring suit in this case. Thereafter, the case was transferred to the undersigned on December 22,1999. On February 9, 2000, the FEC filed notice with the Court that the CPD had announced new selection criteria for the 2000 Presidential Debates. The CPD’s new criteria for selecting debate participants are as follows: (1) evidence of constitutional eligibility, (2) evidence of ballot access — a candidate must have his/her name appear on enough state ballots to have at least a mathematical chance of securing an Electoral College majority in the 2000 election, and (3) indicators of electoral support — a candidate must have the support of at least 15% of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most recent publicly-reported results at the time of the determination. II. Factual Parameters The FECA limits judicial review of plaintiffs’ claims to those alleged violations that have been administratively exhausted. See 2 U.S.C. § 437g(a)(8)(A). Plaintiffs’ standing to sue must be based upon an injury stemming from the FEC’s dismissal of their administrative complaint. See Judicial Watch, Inc. v. FEC, 180 F.3d 277 (D.C.Cir.1999) (holding that plaintiffs lacked standing to bring suit on claims of alleged reporting violations that were not mentioned in the administrative complaint before the FEC). The Natural Law Party’s administrative complaint alleged that (1) the CPD is a fundamentally bipartisan organization composed of Republicans and Democrats; (2) the CPD’s 1996 debate selection criteria violated § 110.13(c) by inviting the Republican and Democratic nominees to the debates solely on the basis of their party affiliations; (3) the 1996 debate selection criteria that the CPD applied to “nonmajor candidates” violated § 110.13(c) because it was not objective; and (4) proposed media coverage of the major presidential candidates by FOX, PBS, and ABC would violate" }, { "docid": "13267832", "title": "", "text": "would imply that such a candidate could never challenge the conduct of the offending agency or party. See Anderson v. Celebrezze, 460 U.S. 780, 792, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983) (Ohio statute impermissibly burdened the campaign efforts of independent candidates by making “[volunteers ... more difficult to recruit and retain, [and] media publicity and campaign contributions ... more difficult to secure”); Common Cause v. Bolger, 512 F.Supp. 26, 30-31 (D.D.C.1980) (three-judge court) (candidates and campaign participants had standing to challenge franking statute which allegedly conferred unlawful benefit on incumbents seeking reelection, on grounds that granting subsidy to incumbents taints the political process and renders it unfair). See generally 1 R. Bauer & D. Kafka, supra, ch. 2, at 28-30 (discussing generally problems which arise when nonmajor candidates are excluded from candidate debates). We must, then, turn to the second and overlapping area of inquiry, the question whether the subject injury is “fairly traceable” to the conduct of the appellees. Both the League and the federal defendants first assert that Fulani’s alleged injury — i.e., the loss of her ability to compete on an equal footing with the other candidates — is too “remote” and “speculative” to be fairly traceable to their conduct, because her eventual loss of the 1988 presidential election cannot fairly be attributed to her exclusion from the League’s primary debates. In so arguing, the defendants rely on the D.C. Circuit’s decision in Winpisinger v. Watson, 628 F.2d 133 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980), wherein the court held that supporters of Senator Edward Kennedy’s effort to win the 1980 presidential nomination of the Democratic Party lacked standing to challenge President Carter’s alleged use of federal funds and public authority to promote his own renomination. In Winpisinger, the court rejected the plaintiffs’ claims on the ground that Senator Kennedy’s inability to obtain the Demo cratic Party nomination could not fairly be attributed to the alleged misconduct of members of President Carter’s administration and reelection committee, given the “endless number of diverse factors potentially contributing to the outcome of" }, { "docid": "21089006", "title": "", "text": "complaint in 1998. Thus, according to defendants, “any injury to plaintiffs, whether based on their exclusion from those debates or on any benefit the other candidates may have received by participating, could not have been caused by the Commission’s dismissal of their administrative complaint more than a year later, and nothing can be done by the Court today to redress such past injuries.” Motion at 11. In addition, defendant argues, any alleged continuing harm from the CPD’s sponsorship of future debates is purely speculative because plaintiffs may not run in future elections, they might qualify for inclusion in future debates, the CPD might not sponsor future debates, or the Republican and Democratic candidates might refuse to participate in a future debate that included the Natural Law Party’s candidate. Plaintiffs allege three injuries in support of standing: (1) that they were denied the opportunity to be fairly considered for inclusion in the debates, (2) that they suffered a competitive political disadvantage relative to the major party candidates, and (3) that they suffered an informational injury due to CPD’s failure to comply with the reporting and registration requirements for political committees. As previously explained, the Court cannot consider plaintiffs’ claim of informational injury because they did not allege any registration or reporting violations in their administrative complaint. With respect to plaintiffs’ allegation that the CPD’s biased selection criteria denied them the opportunity to be fairly considered for inclusion in the debates, defendant makes three arguments. First, the FEC asserts that injuries resulting from plaintiffs’ exclusion from the 1996 debates cannot support a challenge to action by the FEC in 1998 because “past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” Los Angeles v. Lyons, 461 U.S. 96, 103, 103 S.Ct. 1660, 76 L.Ed.2d 675 (1983) (holding that plaintiff injured by chokehold lacked standing to sue for injunction on use of chokeholds by police); see also Branton v. FCC, 993 F.2d 906 (D.C.Cir.1993) (holding that radio listener lacked standing to challenge letter ruling by FCC refusing to take action" }, { "docid": "21088996", "title": "", "text": "the district court’s dismissal on jurisdictional grounds but remanded with instructions to dismiss those counts challenging the legality of the regulations without prejudice to plaintiffs’ ability to file a new lawsuit. Perot v. FEC, 97 F.3d 553 (D.C.Cir.1996). Affirming dismissal, the D.C. Circuit noted, when balancing the equities, that “the damage [plaintiffs] would suffer if the debates were to be held without their participation could at least be partially remedied in subsequent proceedings ....” Id. at 557. On February 24,1998, almost a year and a half after plaintiffs filed their administra tive complaint, the FEC decided, by a 5-0 vote, to dismiss the complaint because the agency found no reason to believe that any violation of law had occurred. In denying the complaint, the FEC concluded that the challenged selection criteria contained “exactly the sort of structure and objectivity the commission had in mind when it approved the debate regulations in 1995.” As such, the CPD’s candidate selection criteria were determined to comply with 11 C.F.R. § 110.13. Upon denial of their administrative complaint, plaintiffs filed this action in April 1998, pursuant to 2 U.S.C. § 437g(a)(8)(A), seeking judicial review of the FEC’s dismissal on the grounds that the agency’s action was arbitrary, capricious and otherwise contrary to law. Defendant responded with the present motion for summary judgment, challenging plaintiffs’ standing to bring suit in this case. Thereafter, the case was transferred to the undersigned on December 22,1999. On February 9, 2000, the FEC filed notice with the Court that the CPD had announced new selection criteria for the 2000 Presidential Debates. The CPD’s new criteria for selecting debate participants are as follows: (1) evidence of constitutional eligibility, (2) evidence of ballot access — a candidate must have his/her name appear on enough state ballots to have at least a mathematical chance of securing an Electoral College majority in the 2000 election, and (3) indicators of electoral support — a candidate must have the support of at least 15% of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most" }, { "docid": "13293589", "title": "", "text": "621 (2d Cir.1989), the Second Circuit found that Fulani had standing to challenge the tax-exempt status of the League of Women Voters. Fulani claimed that the League’s refusal to include her in debates deprived her of critical media exposure and competitive advantage, as well as the opportunity to communicate her political ideas to the electorate. The court found that: [T]he loss of competitive advantage flowing from the League’s exclusion of Fulani from the national debates constitutes sufficient “injury” for standing purposes, because such loss palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates. To hold otherwise would tend to diminish the import of depriving a serious candidate for public office of the opportunity to compete equally for votes in an election, and would imply that such a candidate could never challenge the conduct of the offending agency or party. Fulani v. League, 882 F.2d at 626. The Second Circuit then found that the other prerequisites for standing were met, because removing the League’s not-for-profit status would end the League’s ability to sponsor debates, and probably would have meant the absence of any debates in the 1988 campaign season. In Fulani v. Brady, 935 F.2d 1324 (D.C.Cir.1991) and Fulani v. Bentsen, 35 F.3d 49 (2d Cir.1994), both the Second and the D.C. Circuits cut back on this approach, in cases more nearly mirroring our own. In Fulani v. Brady, Fulani sought standing to challenge the tax-exempt status of the CPD based on its decision that she lacked a realistic chance of being elected President, and its concordant refusal to invite her to the 1988 presidential debates. The D.C. Circuit focused its inquiry on the fact that Fulani was challenging a tax exemption, and noted strong judicial precedent against the ability to challenge the tax treatment of a competitor. See id. at 1327. In particular, Fulani could not meet the standing requirements of traceability and redressability: first, many factors beyond the tax-exempt status of the CPD were influential in excluding Fulani from the debates; second, revocation of the tax-exempt status of the CPD would not necessarily" }, { "docid": "12627613", "title": "", "text": "of Women Voters withdrew in 1988; now it is the sole sponsor of all presidential debates. Id. ¶¶ 52, 65, 69-70, 100. The Commission allegedly structured the 2012 debates to promote RNC and DNC candidates and to exclude other candidates, id. ¶¶ 58-63, and plans to do so again in all future debates, id. ¶¶ 66-67. In each year that presidential debates are held, the Republican and Democratic campaigns enter into a Memorandum of Understanding (MOU). Id. ¶ 71; see also Compl., Ex. 1 (MOU dated Oct. 2012). In 2012, the MOU was signed by the general counsel to the Obama campaign- and the general counsel to the Romney campaign. The MOU provided that the Commission would sponsor the candidates’ debate appearances and the candidates would not appear at any other debate without prior consent of the parties to the MOU. The MOU also provided that the parties “agreed that the Commission’s Nonpartisan Candidate Selection Criteria for 2012 General Election Debate participation shall apply in determining the candidates to be invited to participate in these debates.” Id. 73. Those criteria include (1) evidence of “ballot access”—that the candidate qualified to appear on enough State ballots to have a mathematical chance of securing an electoral college majority; and (2) evidence of “electoral support”— that the candidate had the support of 15% of the national electorate as determined by averaging public opinion polls from five selected national polling organizations (the 15% Provision). Compl. ¶74. The Complaint asserts that the 15% Provision was designed to exclude the participation of third party and independent candidates. Id. ¶¶ 75-76, 85-86. Plaintiffs allege that they have been injured in their “businesses of debating in presidential elections, participating in presidential election campaigns, and engaging in electoral politics.” Id. ¶ 90. Accordingly, Plaintiffs allege that Defendants have colluded to restrain. commerce and monopolize the presidential debates, elections, and politics markets by keeping other parties and candidates out of the debates (and thus out of the electoral competition) and by fixing the terms of participation in the debates to avoid challenges to the Republican or Democratic parties and their" }, { "docid": "8949817", "title": "", "text": "traceability and redressability to the alleged injury to warrant standing under Allen v. Wright, supra. See, e.g., Khalaf v. Regan, 55 A.F.T.R.2d 85-647, 1985 WL 392 (D.D.C.1985), aff'd, No. 85-5274 (D.C.Cir. Sept. 19, 1986) (beneficial tax treatment of third party lacked causal link to plaintiffs’ alleged harm). The Second Circuit accepted Fulani’s theory of competitor standing in the context of a parallel ease, Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.1989). There, the Second Circuit held that Fulani had standing to challenge the § 501(c)(3) status of the League of Women Voters when the League refused to invite her to participate in the presidential primary debates. The court found that Fulani had suffered a cognizable injury because the League’s exclusion of appellant “palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates.” 882 F.2d at 626. According to the Second Circuit: In this era of modern telecommunications, who could doubt the powerful beneficial effect that mass media exposure can have today on the candidacy of a significant aspirant seeking national political office. The debates sponsored by the League were broadcast on national television, watched by millions of Americans, and widely covered by the media. It is beyond dispute that participation in these debates bestowed on the candidates who appeared in them some competitive advantage over their non-participating peers. Id. (citation omitted). The Second Circuit characterized this injury as “the partisan restriction of her opportunities to communicate her political ideas to the voting public at large.” Id. at 627. The Second Circuit went on to find that this injury was “fairly traceable” to the IRS’s award of a § 501(c)(3) tax exemption to the League. Under the regulations of the Federal Election Commission (“FEC”), only a non-profit corporation exempt from taxation under § 501(c)(3) may sponsor a nonpartisan electoral debate, unless the corporation is a media organization. 11 C.F.R. § 110.13(a)(1) & (2). Thus, in League of Women Voters, as in this case, Fulani argued that revocation of the League’s tax-exempt status would disable it from holding debates between the Republican" }, { "docid": "21089009", "title": "", "text": "since the election occurs in the first week of November and the presidential debates occur in mid-October, unless the FEC chooses to act sooner than 120 days from filing, an administrative complaint regarding the selection criteria or other conduct of the debates would have to be filed in early July for the complainant to have the right to commence a court action before the debates occurred. Id. However, in early July political parties have not yet nominated their candidates, and the selection of debate format and participants is still two months away. Undoubtedly such a challenge by a party that had not even selected its candidate, much less been denied the opportunity to have that candidate participate in any prospective debate, could well be considered unripe, leaving plaintiffs trapped in a procedural catch-22. Defendant does not argue that plaintiffs lack prudential standing, and, indeed, plaintiffs’ claims would seem to fall squarely within the “zone of interests” to be protected by the FECA. The FECA explicitly makes corporate contributions or expenditures, including the provision of services, in connection with political elections illegal (2 U.S.C. § 441b(a)), with the limited exception of the staging of nonpartisan debates. 2 U.S.C. § 431(9)(B)(ii). In order to qualify under that exception, the debates must use pre-established objective selection criteria and may not rely solely upon party affiliation. 11 C.F.R. § 110.13. Moreover, the FECA provides that “any person who believes that a violation of this act ... has occurred may file a complaint with the Commission,” 2 U.S.C. § 437g(a)(l), and that “any party aggrieved by an order of the Commission dismissing a complaint ... may file a petition” in district court seeking judicial review. 2 U.S.C. § 437g(a)(l). Whether east as a mootness or standing argument, the logical result of the FEC’s reasoning would be to render § 437g(a)(l) meaningless and to permit harms capable of repetition to evade review. See, e.g., Johnson v. FCC, 829 F.2d at 159 n. 7 (holding that notwithstanding the fact that the election was over, .the challenge of a minority party presidential candidate' to her exclusion from televised" }, { "docid": "21089010", "title": "", "text": "in connection with political elections illegal (2 U.S.C. § 441b(a)), with the limited exception of the staging of nonpartisan debates. 2 U.S.C. § 431(9)(B)(ii). In order to qualify under that exception, the debates must use pre-established objective selection criteria and may not rely solely upon party affiliation. 11 C.F.R. § 110.13. Moreover, the FECA provides that “any person who believes that a violation of this act ... has occurred may file a complaint with the Commission,” 2 U.S.C. § 437g(a)(l), and that “any party aggrieved by an order of the Commission dismissing a complaint ... may file a petition” in district court seeking judicial review. 2 U.S.C. § 437g(a)(l). Whether east as a mootness or standing argument, the logical result of the FEC’s reasoning would be to render § 437g(a)(l) meaningless and to permit harms capable of repetition to evade review. See, e.g., Johnson v. FCC, 829 F.2d at 159 n. 7 (holding that notwithstanding the fact that the election was over, .the challenge of a minority party presidential candidate' to her exclusion from televised debates was not moot, as it was a controversy capable of repetition, yet evading review. “The issues properly presented, and their effects on minor-party candidacies, will persist in future elections, and within a time frame too short to allow for resolution through litigation.”) Past exposure to illegal conduct satisfies the injury in fact requirement where it is accompanied by continuing adverse effects. See FEC v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (holding that plaintiffs had standing to challenge FEC’s denial of administrative complaint alleging informational injuries). The cases cited by defendant, Los Angeles v. Lyons; Branton v. FCC; Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Animal Legal Defense Fund v. Espy, 23 F.3d 496 (D.C.Cir.1994), and the cases cited therein, are distinguishable from the present case in that all involved a single, isolated incident of allegedly illegal conduct so unlikely to be repeated that the threat of future injury was deemed too attenuated to support constitutional standing. The plaintiff in Lyons, who allegedly was" }, { "docid": "21088989", "title": "", "text": "entire record herein, the Court finds that plaintiffs have standing to bring suit and defendant’s motion for- summary judgment is therefore denied. BACKGROUND The Federal Election Campaign Act of 1971 (FECA) prohibits any corporation from making “a contribution or expenditure in connection with” any federal election. 2 U.S.C. § 441b(a). “Contributions” include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. § 431(9)(A)(i). By regulation the term “anything of value” is defined to include “all in-kind contributions.” 11 C.F.R. § 100.7(a)(l)(iii)(A). The FEC, however, recognizing that “non-partisan debates are designed to educate and inform voters rather than to influence the nomination or election of a particular candidate,” issued a regulation exempting from § 441b(a)’s coverage funds that are expended in connection with the staging of non-partisan candidate debates. 11 C.F.R. § 100.7(b)(21). The regulation, which took effect on March 13, 1996, provides that certain non-profit organizations may stage presidential debates, provided they use “pre-established, objective criteria to determine which candidates may participate in a debate.” 11 C.F.R. § 110.13(c). In addition, the regulations prohibit staging organizations from using “nomination by a political party as the sole objective criteria to determine whether to include a candidate in a debate.” Id. Beginning with the debates leading up to the 1988 general election, the staging of candidate debates has been the responsibility of the Committee on Presidential Debates (CPD). CPD was formed in 1987 as a private non-profit corporation for the express purpose of sponsoring presidential debates. During the 1996 election season, CPD sponsored two presidential debates and one vice presidential debate. The only candidates invited to participate in the 1996 debates were President Clinton, the Democratic nominee for President, former Senator Robert Dole, the Republican nominee, and their vice presidential running mates. In choosing the participants for the 1996 debates, CPD selected the Democratic and Republican nominees based on “the historical prominence and sustained voter interest” in the two parties. With respect to the other, “non-major party” candidates for president, CPD’s criteria" }, { "docid": "21089008", "title": "", "text": "against NPR for allegedly broadcasting obscene material in violation of 19 U.S.C. § 1464). Second, the FEC argues that any future or continuing harm that plaintiffs allege is too speculative and hypothetical and cannot qualify as the type of “actual and imminent” injury required to support standing. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Finally, the FEC argues that governmental inaction does not qualify as an injury in fact. The Court rejects these arguments, for the acceptance of the FEC’s overly narrow construction of “injury in fact” would be tantamount to shielding from judicial review many, if not all, election cases. As argued by plaintiffs, if pre-election conduct cannot satisfy the injury-in-fact requirement for standing to challenge a post-election decision by the FEC, then given the 120 day time frame for administrative exhaustion required by the FECA, as a practical matter, the FEC could virtually insulate its decisions from judicial review by failing to take action on any complaint prior to the expiration of 120 days. Opp. at 16. As plaintiffs point out, since the election occurs in the first week of November and the presidential debates occur in mid-October, unless the FEC chooses to act sooner than 120 days from filing, an administrative complaint regarding the selection criteria or other conduct of the debates would have to be filed in early July for the complainant to have the right to commence a court action before the debates occurred. Id. However, in early July political parties have not yet nominated their candidates, and the selection of debate format and participants is still two months away. Undoubtedly such a challenge by a party that had not even selected its candidate, much less been denied the opportunity to have that candidate participate in any prospective debate, could well be considered unripe, leaving plaintiffs trapped in a procedural catch-22. Defendant does not argue that plaintiffs lack prudential standing, and, indeed, plaintiffs’ claims would seem to fall squarely within the “zone of interests” to be protected by the FECA. The FECA explicitly makes corporate contributions or expenditures, including the provision of services," }, { "docid": "13267833", "title": "", "text": "— i.e., the loss of her ability to compete on an equal footing with the other candidates — is too “remote” and “speculative” to be fairly traceable to their conduct, because her eventual loss of the 1988 presidential election cannot fairly be attributed to her exclusion from the League’s primary debates. In so arguing, the defendants rely on the D.C. Circuit’s decision in Winpisinger v. Watson, 628 F.2d 133 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980), wherein the court held that supporters of Senator Edward Kennedy’s effort to win the 1980 presidential nomination of the Democratic Party lacked standing to challenge President Carter’s alleged use of federal funds and public authority to promote his own renomination. In Winpisinger, the court rejected the plaintiffs’ claims on the ground that Senator Kennedy’s inability to obtain the Demo cratic Party nomination could not fairly be attributed to the alleged misconduct of members of President Carter’s administration and reelection committee, given the “endless number of diverse factors potentially contributing to the outcome of state presidential primary elections, caucuses and conventions.” 628 F.2d at 139. We find Winpisinger inapposite, however, because Fulani’s alleged injury is much less attenuated than the injuries asserted therein. In terms of judicial assessment of injury for standing purposes, we find the analysis in Common Cause v. Bolger to be persuasive. In Bolger, candidates alleged that the federal franking statute, which effectively granted small subsidies to the reelection campaigns of incumbent officials, was unconstitutional because it impaired the new contenders’ ability to compete with incumbent candidates on equal terms. Finding that the plaintiffs had standing to sue, the court stated: This dispute over standing boils down to a dispute over the role of ... elections in our political system. If the purpose of campaigns is only to elect candidates, then defendants’ and intervenor’s arguments concerning causation and resultant lack of standing might have some weight. [National] campaigns, however, serve other purposes besides electing particular candidates to office. They are also used to educate the public, to advance unpopular ideas, and to protest the political order," }, { "docid": "21089036", "title": "", "text": "Criteria for 1996 General Election Debate Participation did not comply with 11 C.F.R. § 110.13(c); that the CPD and the Democratic and Republican campaign committees violated 2 U.S.C. § 441b(a)’s prohibition on corporate campaign contributions and expenditures; and that the CPD, the Democratic and Republican campaign committees violated 2 U.S.C. §§ 433 and 434’s registration and reporting requirements for political committees. See General Counsel’s Report, Opp. at Exh. H . \"Any party aggrieved by an order of the Commission dismissing a complaint filed by such party under paragraph (1), or by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition with the United States District Court for the District of Columbia.” 2 U.S.C. § 437g(a)(8)(A). . This delay was due to the FEC’s own protracted review process. Plaintiffs' administrative complaint to the FEC was filed on September 5, 1996, one month prior to the first presidential debate of 1996. It was denied by the FEC in 1998, almost two years later. In 1996, when plaintiffs filed a petition in this Court seeking expedited pre-debate review of their complaint, the FEC argued that the Court did not have jurisdiction until the administrative review process had been completed. The FEC assured the Court, however, that § 437g(a)(8) would allow plaintiffs “all [the] challenges they want to the Commission’s interpretation... after the Commission does its fact finding.” . O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (holding that plaintiffs lacked standing where the prospect of future injury rested on the likelihood that they would again violate lawful criminal statutes, be prosecuted and tried for their offenses, and thereby be subjected once again to allegedly discriminatory sentencing procedures); Rizzo v. Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (holding that plaintiffs lacked standing where claim of injury rested upon “what one or a small, unnamed minority of 'policemen might do to them in the future because of that unknown policeman’s perception of departmental procedures”); Golden v. Zwickler, 394" }, { "docid": "13267831", "title": "", "text": "television, watched by millions of Americans, and widely covered by the media. It is beyond dispute that participation in these debates bestowed on the candidates who appeared in them some competitive advantage over their non-participating peers. See 1 R. Bauer & D. Kafka, United States Federal Election Law ch. 2, at 29 (1984) (major party competitors in candidate debates receive “substantial media exposure without charge,” which “surely constitute^] a benefit of considerable value” to them, at the expense of nonmajor party candidates); cf. Johnson v. F.C.C., 829 F.2d 157, 165 (D.C.Cir.1987) (“[petitioners’] inclusion in the televised debates undoubtedly would have benefited their campaign”). In our view, the loss of competitive advantage flowing from the League’s exclusion of Fulani from the national debates constitutes sufficient “injury” for standing purposes, because such loss palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates. To hold otherwise would tend to diminish the import of depriving a serious candidate for public office of the opportunity to compete equally for votes in an election, and would imply that such a candidate could never challenge the conduct of the offending agency or party. See Anderson v. Celebrezze, 460 U.S. 780, 792, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983) (Ohio statute impermissibly burdened the campaign efforts of independent candidates by making “[volunteers ... more difficult to recruit and retain, [and] media publicity and campaign contributions ... more difficult to secure”); Common Cause v. Bolger, 512 F.Supp. 26, 30-31 (D.D.C.1980) (three-judge court) (candidates and campaign participants had standing to challenge franking statute which allegedly conferred unlawful benefit on incumbents seeking reelection, on grounds that granting subsidy to incumbents taints the political process and renders it unfair). See generally 1 R. Bauer & D. Kafka, supra, ch. 2, at 28-30 (discussing generally problems which arise when nonmajor candidates are excluded from candidate debates). We must, then, turn to the second and overlapping area of inquiry, the question whether the subject injury is “fairly traceable” to the conduct of the appellees. Both the League and the federal defendants first assert that Fulani’s alleged injury" }, { "docid": "13293588", "title": "", "text": "regulation to which they might someday be subject. B. Nader’s second theory of standing is not based on the strategic underpinnings of his own campaign, but on the theory that the corporate contributions to the CPD imper-missibly help his competitors, essentially providing Gore and Bush with inexpensive access to extensive media coverage. The theory that a political competitor incurs injury because of an impermissible benefit to his opponent is premised on a line of cases granting standing to economic competitors. See, e.g., Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 403, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Courts have, however, been reluctant to adopt this “political competitor” theory of standing, not so much because the injury faced by a plaintiff is not a real one, but because that injury generally cannot be traced to the challenged regulation, nor is the injury usually redressable by invalidating the regulation. Three cases pursued by minor party candidate Lenora Fulani indicate the contours of this standing doctrine. In Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.1989), the Second Circuit found that Fulani had standing to challenge the tax-exempt status of the League of Women Voters. Fulani claimed that the League’s refusal to include her in debates deprived her of critical media exposure and competitive advantage, as well as the opportunity to communicate her political ideas to the electorate. The court found that: [T]he loss of competitive advantage flowing from the League’s exclusion of Fulani from the national debates constitutes sufficient “injury” for standing purposes, because such loss palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates. To hold otherwise would tend to diminish the import of depriving a serious candidate for public office of the opportunity to compete equally for votes in an election, and would imply that such a candidate could never challenge the conduct of the offending agency or party. Fulani v. League, 882 F.2d at 626. The Second Circuit then found that the other prerequisites for standing were met, because removing the League’s not-for-profit status would end the League’s" } ]

[ { "docid": "22663697", "title": "", "text": "to § 418 of the Restatement, which makes interest part of the damages to be determined by the law of the place of performance. Application of the .New York statute apparently followed from the court’s independent determination of the “better view” without regard to Delaware law, for no Delaware decision or statute was cited or discussed. We are of opinion that the prohibition declared in Erie R. Co. v. Tompkins, 304 U. S. 64, against such independent determinations by the federal courts, extends to the field of conflict of laws. The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware’s state courts. Otherwise, the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. See Erie R. Co. v. Tompkins, supra, at 74-77. Any other ruling would do violence to the principle of uniformity within a state, upon which the' Tompkins decision is based. Whatever lack of uniformity this may produce between federal courts in different states is attributable to our federal system, which leaves to a state, within the limits permitted by the Constitution, the right to pursue local policies diverging from those of its neighbors. It is not for the federal courts to thwart such local policies by enforcing an independent '“general law” of conflict of laws. Subject only to review by this Góurt' on any. federal question that may arise, Delaware is free to determine whether a given matter is to be governed by the law of the forum or some other law. Cf. Milwaukee County v. White Co., 296 U. S. 268, 272. This Court’s views are not the decisive factor in determining the applicable conflicts rule. Cf. Funkhouser v. J. B. Preston Co., 290 U. S. 163. And the proper function of the Delaware federal court is to ascertain what the state law is, not what it ought to be. Besides these general considerations, the traditional treatment of interest in diversity eases brought in the federal courts points to the same conclusion." } ]

[ { "docid": "18433989", "title": "", "text": "a number of affirmative defenses and filed a third-party complaint against Smith on the grounds that she was wholly or jointly liable for plaintiffs’ injuries. Discovery ensued in which the releases between plaintiffs and Smith were brought to light. As a consequence, GM amended its answer to allege a complete affirmative defense based on the releases. In its motion for judgment on the pleadings, GM argues that the language discharging “all other persons, firms, corporations, associations or partnerships” relieves it of liability. In their motion for summary judgment, plaintiffs reply that this phrase does not include GM because the parties to the agreement had no such intent. If, say plaintiffs, the release is construed to release GM, then this Court should reform the contract because of mutual mistake regarding the effect of the language. After oral argument on the motions, the Court determined that the case of Chakov v. Outboard Marine Corp., then on appeal to the Delaware Supreme Court, could be determinative in this diversity ease. Accordingly, this matter was stayed pending the outcome of Chakov. Opinions in that case having issued, and the parties having supplemented their briefs in letter memoranda, the motions are ready for decision. Choice of Law The first issue for decision is which law will govern this action. Under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal district court exercising diversity jurisdiction must look to appropriate state substantive law. Delaware choice of law rules control since Delaware is the forum state. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). At this point, it becomes necessary to determine the nature of the action in order to apply the proper rule. Unfortunately, neither the parties nor the Court has been able to uncover Delaware case law pertinent to conflicts issues regarding the effect of a release. Therefore the more general categories of tort law and contract law will have to be examined. Although the parties appear to have viewed the claims as sounding in tort, the Court" }, { "docid": "13027684", "title": "", "text": "by counsel. Crane v. Harsco, 511 F.Supp. at 304. Plaintiffs’ claim here is that Smith breached his fiduciary duties to Pabst and its shareholders “through the mismanagement, waste and conversion of assets.” (D.I. 1, ¶ 82.) Although Kalmanovitz purports to bring these claims both individually and derivatively on behalf of the corporation, it is clear from every claim alleged by Kalmanovitz under Count VII that it constitutes a derivative claim because each alleged injury is one which would be suffered by all the stockholders of Pabst due to their status as stockholders and not as the result of any unique relationship with the corporation. See Elster v. American Airlines, 34 Del.Ch. 94, 100 A.2d 219, 222 (1953); Bokat v. Getty Oil Company, 262 A.2d 246, 249 (Del.Supr.1970). The plaintiffs’ standing to pursue derivative claims alleging violations of Delaware common law is also a question of substantive Delaware law. See Crane v. Harsco, 511 F.Supp. at 304 (alleged violations of Delaware law in connection with a tender offer were reviewed under Delaware law). It is well established under Delaware law that a plaintiff who brings a derivative suit on behalf of a corporation must be a stockholder of the corporation at the time he commences the suit and must maintain that status throughout the course of the litigation. Lewis v. Anderson, 453 A.2d 474 (Del.Ch.1982), aff'd, 477 A.2d 1040 (Del.1984); Heit v. Tenneco, 319 F.Supp. 884 (D.Del.1970). In Lewis v. Anderson, the Delaware Supreme Court held that “a plaintiff who ceases to be a shareholder, whether by reason of a merger or for any other reason, loses standing to continue a derivative suit____” 477 A.2d at 1049. Lewis v. Anderson, a suit by a Conoco stockholder alleging derivative claims was dismissed when, subsequent to the filing of the suit, a third party (DuPont Holdings, Inc., a wholly-owned subsidiary of E.I. duPont de Nemours and Company) acquired all of the outstanding stock of Conoco through a tender offer followed by a merger. The court, in its analysis, stated: [T]he right to a pending cause of action is an asset of the merged" }, { "docid": "21418609", "title": "", "text": "opinion — rather than “reverse” is not reluctance on my part to face the reality of correcting myself. Once an opinion is written and filed, a judge is often loath to reverse himself. Such, however, will not be the situation here. It would be inconsistent on my part to ascribe to my writings immunity from re-evaluation and change if I suspect error. Delaware law applies; not the federal cases I considered. Defendant will have summary judgment under the condition noted. An order may be submitted. . Skillman v. Conner, 8 W.W.Harr. 402, 38 Del. 402, 193 A. 563; Black & Yates v. Mahogany Association, 3 Cir., 129 F.2d 227, 148 A.L.R. 841; Geller v. Transamerica Corp., D.C.Del., 53 F.Supp. 625; Odlivak v. Elliott, D.C., 82 F.Supp. 607; Adam Hat Stores, Inc., v. Lefco, 3 Cir., 134 F.2d 101. . The following brief listing of factors will demonstrate this: 1. Similarity of names: Plywood case. The Court said: “The name United Plywood Corporation ought not to be confused by any reasonably intelligent or ordinarily observant person with United States Plywood Co., any more so than should, for instance, the name United Steel Corporation be confused with United States Steel Corporation. The complainant has no exclusive right to use ‘united’ and ‘plywood.’ Those names are such as, generally speaking, are not susceptible of appropriation by any one.” Federal Glass case. The same observations would apply. 2. Similarity of goods: Plywood case. Both parties dealt in plywood. But there the parties actually dealt, to a limited extent, with the same product. Federal Glass case. Both deal with glass but with different types of the product. The plaintiff deals in tumblers and tableware, while the defendant deals in plate glass, mirrors and window glass. 3. Competition: Plywood case. There was a limited amount of competition. Federal Glass case. No competition. 4. Palming off: Plywood case. None. Federal Glass case. None. 5. Confusion of source of goods: Plywood case. “The evidence is before me * * * it fails completely to convince me that any confusion worth noticing exists.” Federal Glass case. The same remark" }, { "docid": "20359294", "title": "", "text": "from any office of the plaintiff and the time limit of three years were not unreasonable. McCann Surveyors, 611 A.2d at 4; see also Pfuhl, Civ.A. No. 12527, 1992 WL 345465 *11-12 (taking note of the rules requiring reasonable limits, but finding that the broad distribution of plaintiffs customers in that case and the limited nature of the relief sought as to customer and suppliers with whom defendants or their subordinates had contact were reasonable, wherever the customers were located). However, like the modern approach of Iowa courts, Delaware courts apply the rule that restrictive covenants may be enforced “only to the extent that it is reasonable so to do.” Faw, Casson & Co., 375 A.2d at 467 (citing Knowles-Zeswitz Music, Inc. v. Cara, 260 A.2d 171 (Del.Ch.1969)). Thus, the court in Faw, Casson & Co. felt called upon to determine the proper limits for a geographical area rather vaguely described as “the Delmarva peninsula.” Similarly, the court in Knowles-Zeswitz Music, Inc. determined that the geographical area referred to in the covenant was “much too broad,” but that the plaintiff had properly limited the area in its request for an injunction, and therefore concluded that the more limited area would be enforced. 260 A.2d at 175. The “central aspect” of the analysis of the enforceability of a covenant not to compete under Delaware law, however, is “a balancing of harms that are threatened to plaintiff and the consequences of specific enforcement to the defendant.” McCann Surveyors, 611 A.2d at 4. Substantial weight is given to the plaintiffs harm when “valuable trade secret or other proprietary information has been learned by the defendant and, therefore, his competition with plaintiffs business may be particularly effective and unfair.” Id. (citing E.I. duPont de Nemours & Co. v. American Potash & Chemical Corp., 41 Del.Ch. 533, 200 A.2d 428 (1964), and C. Edgar Wood, Inc. v. Clark, C.A. No. 833-K, 1986 WL 1160, Allen, C. (Del.Ch. Jan. 21, 1986)). The balance weighs in favor of the defendant, however, “where ... there is little or no real advantage to plaintiff in the specific enforcement of" }, { "docid": "17542910", "title": "", "text": "frozen cakes had acquired a secondary meaning as originating with plaintiff. Of this there is no proof. Plaintiff cites three cases in this circuit apparently for the propositions: (1) that if there be “intent to deceive” this will be sufficient in otherwise doubtful cases (My-T Fine Corporation v. Samuels, 2 Cir., 1934, 69 F.2d 76, 77); (2) that fraudulent copying is evidence of secondary meaning (American Medicinal Spirits Co. v. United Distillers, 2 Cir., 1935, 76 F.2d 124); and (3) that no evidence of actual confusion is required to secure an injunction (G. H. Mumm Champagne v. Eastern Wine Corp., 2 Cir., 1944, 142 F.2d 499). These cases illustrate the dangers of developing broad principles of law from specific fact situations. In My-T Fine the boxes containing the pudding mix were most similar in appearance. The label in American Medicinal Spirits Co. [76 F.2d 125] featured the same words “Bourbon de Luxe” as the plaintiff’s labels so that a purchaser might think it to be the same product. In the Mumm case again it was the particular red-striped label, closely associated with the plaintiff’s product, that was likely to cause confusion. The New York General Business Law (sec. 368-c, subd.- 3) provides that “Likelihood of injury to business reputation or of dilution of the distinctive quality of a trade name or trade-mark shall be a ground for injunctive relief in cases of trade-mark infringement or unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” Here the underlying prerequisite, i. e., trade-mark infringement or unfair competition is lacking. Since the trial court erred in its findings and conclusions of unfair competition and violation of New York General Business Law, and in holding plaintiff’s copyrights infringed beyond the illustrations of the three cakes, it is appropriate to reassess the damages and attorney’s fee awarded below. The judgment is modified by deleting therefrom subparagraphs “(b)” and “(c)” and the last paragraph thereof. Since defendants did not infringe plaintiff’s copyright in its coffee cake label, the injunctive provisions of the" }, { "docid": "7704764", "title": "", "text": "(3) federal common law, this being a federal question case brought in a federal district court. The parties have neglected to address thoroughly the choice of law question. Compare D.I. 75 at 5-6 & n. 2 (defendants’ brief, reciting their view of the alter ego doctrine under both Delaware and Oklahoma law) and D.I. 77 at 10 (plaintiff’s ■ counsel at oral argument refers to Delaware law) with D.I. 77 at 4 (at oral argument, defendants’ counsel emphasizes one of the required elements for a finding of alter ego “in the Delaware State Courts and under Oklahoma law and under federal law”) and D.I. 77 at 6 (at oral argument plaintiff’s counsel urges the application of federal law to the alter ego question). Both sides in this dispute have cited Japan Petroleum Co. (Nigeria) Ltd. v. Ashland Oil, Inc., 456 F.Supp. 831 (D.Del.1978). In Japan Petroleum, this Court observed that: Delaware courts which have considered the question of whether a parent corporation should be subjected to liability for a subsidiary’s obligations have applied Delaware law, even in the case of foreign subsidiaries. See, e.g., Pauley Petroleum, Inc. v. Continental Oil Co., [239 A.2d 629 (Del.1968) ]; Buechner v. Farbenfabriken Bayer Aktiengesellschaft, [38] Del. Ch. 490, 154 A.2d 684 ([Del.] 1959). 456 F.Supp. at 840 n. 17. See also 2 E. Folk, R. Ward & E. Welch, Folk on the Delaware General Corporation Law § 329.3, at 400 (2d ed.1988) (“[i]t appears that the question of whether to disregard the corporate entity is determined under Delaware law not only when it is a Delaware corporation that would be ignored but also when a Delaware parent corporation would be held liable for the obligations of a foreign subsidiary”). Japan Petroleum was a diversity case. A federal court in a diversity action applies the conflicts rules of the state in which it sits to determine what law should be applied. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). This patent infringement suit, however, is a federal question ease rather than a diversity" }, { "docid": "21418607", "title": "", "text": "201. In my former opinion I applied the law of unfair competition as it has been discussed in the federal cases; and no allusion was made to the law of unfair competition as announced by the Delaware courts. Plaintiff challenges the applicability of Delaware law and argues although jurisdiction is based on diversity of citizenship, and no trade mark infringement is involved, nevertheless, the law of the forum (Delaware) does not govern. The plaintiff’s position is the -acts complained of did not happen in Delaware but occurred in the District of Columbia; and, therefore, the law of the place of wrong should govern. In short, plaintiff’s position is that in Delaware, as a matter of conflict of laws, when a question of tort liability is presented, the conflict of laws rule of Delaware is that in the case of tort, substantive rights are governed by the law of the jurisdiction where the wrong occurred. 1. The difficulty with plaintiff’s position is that there is no showing that the law of the District of Columbia on unfair competition is different from that of Delaware. I think the recent opinion of Chancellor Seitz in E. I. duPont de Nemours & Co. v. DuPont Safety Razor Co., Del.Ch., 82 A.2d 384, impliedly recognizes that unless there is a showing to the contrary the Delaware, courts apply their own law on questions of unfair competition. This being so, the case of United States Plywood Co., Inc., v. United Plywood Corporation, 19 Del.Ch. 27, 161 A. 913, 914, is applicable to the case at bar. 2. At argument, defendant offered, here, to change its name to either 1. Federal Plate Glass Co., Inc. or 2. Federal Plate Glass Corporation. After review and of more importance considering defendant’s offer, I finally conclude it has brought itself, as stated before, within the case of United States Plywood and I am, therefore, modifying my former views to this extent: If defendant adopts either of the names it has suggested, summary judgment shall be entered for it. 3. My use of the word “modify” — as to the above" }, { "docid": "7501124", "title": "", "text": "contrary. In Afros S.p.A. v. Kraus-Maffei Corp., 624 F.Supp. 464 (D.Del.1985), the parent owned 100% of its subsidiaries’ stock. After a suit for patent infringement was filed against the parent, the parent assigned the allegedly infringing patent to its subsidiary. The Chief Executive Office of the subsidiary did not know of the assignment. The Court held that personal jurisdiction did not lie because the parent had “no direct contact with Delaware; its only ascertainable ‘contact’ is through its subsidiary_” Id. at 468. In Afros, unlike the present case, the parent’s act of incorporating the subsidiary did not give rise to the alleged tort. Here, PLC did have direct contact with Delaware, for specific jurisdictional purposes, when its act of incorporating DMH using the name “Sears” is the very act Roebuck alleges gives rise to liability. The Court in Akzona Inc. v. E.I. Dupont de Nemours & Co., 607 F.Supp. 227 (D.Del.1984), did not distinguish the agency and alter-ego theories. However, it did find that absent total control of the subsidiary, evidenced by interference in the day-to-day operations of the subsidiary, the presence of the subsidiary could not be imputed to the parent for jurisdictional purposes. See id. at 237, 238 (“[The plaintiff] has not established that [the defendant] interferes in the day-to-day operations of its subsidiaries but only that it oversees and approves major capital expenditures.”). Roebuck has established that PLC oversees major policy decisions of DMH, such as the sale of the Butler Group, but has failed to show the pervasive interference with DMH required by the analysis in Akzona. Finally, in Altech Indus., Inc. v. Al Tech Specialty Steel Corp., 542 F.Supp. 53 (D.Del.1982), the Court found it had both specific and general jurisdiction over the defendant parent corporation. Specific jurisdiction was found under an agency theory. As with PLC and DMH, the parent corporation in Altech “directed and controlled” its subsidiary in the accomplishment of one act: “infringing plaintiff’s trade name.” Altech, 542 F.Supp. at 55. General jurisdiction was established in Al-tech because of the parent corporation’s substantial connections with Delaware. “A vast majority” of the parent" }, { "docid": "18658944", "title": "", "text": "Delaware is fairly compelling, the Court must ultimately be guided by whether Delaware courts recognize such an exception in applying its doctrine of claim preclusion. Defendant Blades contends there is no basis for inferring such an exception to the general rule of claim preclusion in Delaware because under 10 Del. C. § 1902, the plaintiff could have brought any equitable claims arising out of his Superior Court action in Delaware Chancery Court without initiating a second cause of action. This argument is flawed in that it confuses two distinct issues. Although the enabling provision of 10 Del. C. § 1902 may permit the transfer of actions from courts lacking jurisdiction to courts of competent jurisdiction, such a provision does not resolve the essential issue presently before the Court, namely, whether state law precludes a separate action in equity after a judgment has been obtained in an action at law where both actions arise from a common transaction. While there is no authoritative declaration from Delaware’s highest court with respect to this issue, sufficient sources of state law exist from which to forecast Delaware law. At least three considerations suggest that Delaware's highest court would permit a party seeking equitable relief to maintain a separate cause of action even though the party had obtained a final judgment at law with respect to claims arising out of the same underlying transaction. First, Delaware courts have expressly endorsed the sections of the Restatement enunciating this exception. See Maldonado v. Flynn, 417 A.2d 378, 381-83 (Del.Ch.1980) (citing corresponding sections in Tentative Draft No. 5 to Restatement (Second) of Judgments § 26(c) & comment c (1980)). Moreover, Delaware courts have actually applied the exception in slightly different contexts from the way in which plaintiff seeks to employ it here. Thus, “where it appears that a plaintiff could not for jurisdictional reasons have presented his claim in its entirety in a'prior adjudication, the rule against claim splitting will not be applied to bar th[e] claim.” Maldonado v. Flynn, 417 A.2d 378, 383 (Del.Ch.1980); cf. Hughes v. Trans-World Airlines, 336 A.2d 572, 575-78 (Del.1975) (holding that federal" }, { "docid": "16869877", "title": "", "text": "existed a deficiency in working capital. To acquire inventories of leaf tobacco necessary to meet sales requirements and to have paid dividends also, it would have been necessary to double the amount of bank loans. It is the general law that in matters dealing with the internal affairs of corporations or in matters involving the relationship of shareholders inter sese the law of the state of incorporation controls. 2 Beale, Conflict of Laws, Sec. 192.1 et seq. Of. also Restatement, Conflicts of Law, Sec. 193 et seq. The rationale of the rule is that since all relationships between shareholders are created by the state of incorporation, questions concerning the nature of the relationship created should be de termined by reference to the law of that state. Yet, whether the relationship must be determined by the law of Kentucky, is dependent, in turn, on whether this is the Delaware conflict view. Absent any decisional law on this point, I conclude Delaware would, under such circumstances, examine the general authority on this point and accept that authority as the law of Delaware. Stentor Electric Mfg. Co. v. Klaxon Co,. 3 Cir., 125 F.2d 820; Moyer v. Van-Dye-Way Corporation, 3 Cir., 126 F.2d 339. My alternate holding is, of course, under the Delaware conflicts rule it would apply the law of the place of wrong; in either event, the law of Kentucky controls. The Delaware courts have adopted the same view as Kentucky. Cahall v. Lofland, 12 Del.Ch. 299, 114 A. 224, affirmed 13 Del.Ch. 384, 118 A. 1; DuPont v. DuPont, D.C.Del., 242 F. 98, 136. This is, also, apparently the majority view. See, Fletcher, Cyc. Corporations, § 1168. Plaintiff’s argument that defendant was bound to furnish information relative to the inventory appreciation of' Axton-Fisher ignores the fact this information was available upon investigation, and in this case plaintiff’s invest-ment counsel was presumably an expert. At the time of plaintiff’s sale of his shares, defendant owned 56% of the voting stock of Axton-Fisher, none of whose officers, directors or employees had ever worked for defendant or any of its affiliates; and none" }, { "docid": "23252295", "title": "", "text": "years after settling the Underlying Litigation and the Bush Ranch case. During the pendency of the Florida certification proceedings from the other settlement-fraud cases, DuPont moved for judgment on the pleadings in the instant action. DuPont also moved, in a related case involving similarly situated plaintiffs, for certification to the Supreme Court of Delaware of the issue of whether the release barred such settlement-fraud actions. The district court granted DuPont’s motion for certification in the related case and stayed all proceedings in this and all other related cases pending the resolution of the certified question. The district court certified the following question to the Supreme Court of Delaware: “Under Delaware law, does the release in these settlement agreements bar Plaintiffs’ fraudulent inducement claims?” E.I. DuPont De Nemours & Co. v. Florida Evergreen Foliage, 744 A.2d 457, 459 (Del.1999). The Delaware Supreme Court answered that, under Delaware law, the release clause did not unambiguously bar the plaintiffs’ fraudulent inducement claims. Id. at 461. The court held that a tort claimant fraudulently induced to execute a release may opt either for rescission or a separate suit for fraud with damages calculated on the difference between that received under the release and the value of the settlement or recovery achieved had there been no fraud by the released party. Id. at 458. The district court then ruled on DuPont’s motion for judgment on the pleadings. DuPont had moved for judgment on the pleadings on all of Plaintiffs’ claims except for their spoliation claim. In an order dated March 8, 2001, the district court found that Florida law governed Plaintiffs’ tort claims and dismissed all of Plaintiffs’ state law claims as barred by Florida’s litigation privilege. Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 135 F.Supp.2d 1271, 1278, 1283 (S.D.Fla.2001). As an alternative basis for dismissing Plaintiffs’ state law fraud claims, the district court found that Plain tiffs had not reasonably relied on any misrepresentations by DuPont. Id. at 1297. The district court denied DuPont’s motion for judgment on the pleadings as to Plaintiffs’ federal RICO claims. Id. at 1289. The district" }, { "docid": "7396905", "title": "", "text": "using the ACCU mark and intending to reap some benefit from the goodwill built up in it. There simply is no evidence in the summary judgment record to suggest defendant acted with “some design inimical to the interest of the plaintiff.” At most, a reasonable trier of fact could infer that defendant had knowledge of the trademark used by plaintiff, but the evidence demonstrating such knowledge is weak at best. Summary judgment therefore must be granted defendant on this issue. C. Plaintiffs Claims Under Delaware Law In its complaint, plaintiff asserts state law claims under both the Delaware Act, Del. Code tit. 6 § 2531 et seq. (1974), and the Delaware common law of unfair competition. D.I. 1. Defendant argues these claims must be dismissed because plaintiff has no rights in its trademark in Delaware. .D.I. 82 at 27-28; D.I. 102 at 10. The Court will examine this issue using choice of law principles and substantive law principles. 1. Choice of Law Principles In federal civil actions for which state law supplies the rule of decision, federal courts must apply state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The question of which state law applies also is governed by state law — the law of the forum State of Delaware. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions such as this, Delaware has adopted the “most significant relationship”, test for choice of law. See. Travelers Indem. Co. v. Lake, 594 A.2d 38, 47 (Del.1991). That is, the state law which “has the most significant relationship to the occurrence and the parties” will govern. Id. Various factors are relevant to this inquiry: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) cer-' táinty, predictability" }, { "docid": "21418608", "title": "", "text": "unfair competition is different from that of Delaware. I think the recent opinion of Chancellor Seitz in E. I. duPont de Nemours & Co. v. DuPont Safety Razor Co., Del.Ch., 82 A.2d 384, impliedly recognizes that unless there is a showing to the contrary the Delaware, courts apply their own law on questions of unfair competition. This being so, the case of United States Plywood Co., Inc., v. United Plywood Corporation, 19 Del.Ch. 27, 161 A. 913, 914, is applicable to the case at bar. 2. At argument, defendant offered, here, to change its name to either 1. Federal Plate Glass Co., Inc. or 2. Federal Plate Glass Corporation. After review and of more importance considering defendant’s offer, I finally conclude it has brought itself, as stated before, within the case of United States Plywood and I am, therefore, modifying my former views to this extent: If defendant adopts either of the names it has suggested, summary judgment shall be entered for it. 3. My use of the word “modify” — as to the above opinion — rather than “reverse” is not reluctance on my part to face the reality of correcting myself. Once an opinion is written and filed, a judge is often loath to reverse himself. Such, however, will not be the situation here. It would be inconsistent on my part to ascribe to my writings immunity from re-evaluation and change if I suspect error. Delaware law applies; not the federal cases I considered. Defendant will have summary judgment under the condition noted. An order may be submitted. . Skillman v. Conner, 8 W.W.Harr. 402, 38 Del. 402, 193 A. 563; Black & Yates v. Mahogany Association, 3 Cir., 129 F.2d 227, 148 A.L.R. 841; Geller v. Transamerica Corp., D.C.Del., 53 F.Supp. 625; Odlivak v. Elliott, D.C., 82 F.Supp. 607; Adam Hat Stores, Inc., v. Lefco, 3 Cir., 134 F.2d 101. . The following brief listing of factors will demonstrate this: 1. Similarity of names: Plywood case. The Court said: “The name United Plywood Corporation ought not to be confused by any reasonably intelligent or ordinarily observant person" }, { "docid": "22578277", "title": "", "text": "under Delaware law. 2. Control The district court also correctly held that neither MFS nor Scott “controlled” the independent trustees under Delaware law. See Harriman v. E.I. DuPont De Nemours & Co., 372 F.Supp. 101, 106 (D.Del.1974) (“[i]t is only when a person affirmatively undertakes to dictate the destiny of the corporation that he assumes such a fiduciary duty”); Gilbert, 490 A.2d at 1055 (outsiders do not become fiduciaries simply because they have a “superior bargaining position” with management; there must be “domination ... through actual exercise of direction over corporate conduct”). Here, appellants failed to offer — and do not offer on appeal — any facts to establish that MFS and Scott affirmatively dictated the destiny of the Fund or dominated through actual exercise of direction over the independent trustees. We hold that the district court properly dismissed appellants’ claims against MFS and Scott for breach of fiduciary duty under Delaware common law. D. Dismissal of waste and interference with prospective economic advantage claims against MFS and Scott Appellants contend that the district court erroneously dismissed Navellier’s claims against MFS and Scott for waste and for intentional interference with prospective economic advantage pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants’ arguments are without merit. 1. Waste The parties agree that Delaware law is controlling on this issue. Delaware courts have explained that the legal test for waste is “severe.” Glazer v. Zapata Corp., 658 A.2d 176, 183 (Del.Ch.1993). “Directors are guilty of corporate waste, only when they authorize an exchange that is so one sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration.” Id. We hold that the district court properly dismissed the waste claims asserted against MFS and Scott. Under Delaware law, there is no basis for a waste claim against these parties who were not directors. Moreover, appellants’ first amended complaint itself established that a shareholder proxy vote was legally required pursuant to Rule 15a-4 of the ICA, which also shows there could have been no waste. 2. Interference with prospective economic advantage California recognizes a “competition" }, { "docid": "3231109", "title": "", "text": "must be dismissed for failure to state a claim upon which relief can be granted. Motion to Dismiss Count Two (the “state count”) The defendánt also moves to dismiss the state count for failing to state a claim upon which relief can be granted or, alternatively, for improper venue. For reasons set forth hereafter, we deny defendant’s motion to dismiss for failing to state a claim, and hold in abeyance the motion to dismiss for improper venue, pending the submission of certain affidavits enumerated below. Failure to State a Claim While there is some small dispute between the parties, it is well-settled that where, as here, federal jurisdiction is based on diversity of citizenship, the federal court must apply the choice-of-law rules prevailing in the state in which it sits, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) and that the New York choice-of-law rules indicate that the Court must apply the law of the state of incorporation to determine the existence and extent of corporate fiduciary obligations and liability for violations. Diamond v. Oreamuno, 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N. E.2d 910 (1969); Gildenhorn v. Lum’s Inc., 335 F.Supp. 329 (S.D.N.Y.1971) rev’d on other grounds sub nom., Schein v. Chasen, 478 F.2d 817 (2d Cir. 1973). The state of incorporation of FMC is Delaware, and, the parties agree, the Delaware law of fiduciary obligations is embodied in Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5 (1949). In Brophy, a stockholder’s derivative action was sustained against an employee of the corporation who, by virtue of his position as confidential secretary to one of the directors, attained access to nonpublic information (i. e. when the corporation was going to make large purchases of its own stock) which enabled him to purchase the company’s stock just before the price rose, and sell it at a profit immediately thereafter. The court held, that this defendant, although not a director, was in a position to acquire non-public information, and thereby analogous to a fiduciary. As such, he had a duty" }, { "docid": "21418604", "title": "", "text": "program, its listing in directories and national publications pertaining to the glass business. Defendant came to plaintiff’s attention in May 1949. Plaintiff notified defendant to cease to use plaintiff’s name. The notice was ignored. Defendant became a Delaware corporation on June 30, 1947 under the name “Federal Glass Co., Inc.”. It is engaged in the business of installing plate glass, window glass and mirrors in the metropolitan area in Washington, D. C. The area embraces parts of Virginia and Maryland. 1. It is undisputed plaintiff has been in the glass field since 1904; and defendant did not begin to use its corporate name until 1947. I think plaintiff has had a long priority over defendant and defendant is a newcomer in the field. 2. Defendant contends that since plaintiff is engaged in the manufacture and sale of glass products such as tumblers, kitchen and dinner ware, etc., it is in a different field from defendant, who is engaged in the sale of plate glass, window glass and mirrors. I think the glass products of both parties are goods of the same descriptive properties. The conclusion is that there is a similarity of fields and goods. 3. Defendant argues there is no clear showing of actual confusion. That matters not. The test in these cases is the likelihood of confusion and proof of actual confusion is not essential. Fox Fur Co. v. Fox Fur Co., D.C.Md., 59 F.Supp. 12, 15; Fox Fur Co. v. Fox Fur Co., D.C.Del., 59 F.Supp. 701, 703; Great Atlantic and Pacific Tea Company v. A. & P. Radio Stores, Inc., D.C.E.D.Pa., 20 F.Supp. 703, 705. 4. In my former decision in Telechron, Inc., v. Telicon Corp., D.C.Del., 97 F.Supp. 131, I stated where the names of plaintiff and defendant are similar both as to sight and sound defendant must give way. In this case the names are almost identical. Plaintiff is entitled to be protected against the invasion of its rights and good will. After argument, defendant by affidavit stated its willingness to change its name in any reasonable fashion in order to remove the challenge" }, { "docid": "11334284", "title": "", "text": "SOPER, Circuit Judge. The validity of the word “cellophane” as a trade-mark indicating a kind of wrapping material manufactured by E. I. duPont de Nemours and Company, a Delaware corporation, is the subject matter of this suit in which Sylvania Industrial Corporation, a Virginia corporation, is charged with infringement and unfair competition. In answer to the bill of complaint Sylvania denied infringement and averred affirmatively that “cellophane” is not a trademark, but is a generic and descriptive name used by the public and the trade to indícate a kind of product manufactured both by plaintiff and by defendant. Going further, Sylvania averred that the character of “cellophane” as the descriptive name of a product was adjudicated in DuPont Cellophane Co., Inc. v. Waxed Products Co., Inc., 2 Cir., 85 F.2d 75, certiorari denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443, 304 U.S. 575, 58 S.Ct. 1047, 82 L.Ed. 1539, 305 U.S. 672, 59 S.Ct. 227, 83 L.Ed. 436, in which case the plaintiff in the instant case, as successor to a wholly owned subsidiary, was plaintiff, and Waxed Products Company, Inc., a customer of Sylvania, was defendant; and that Sylvania, being interested in the suit, employed counsel and defended the suit on behalf of its customer openly and to the knowledge of the plaintiff and the court. Upon these pleadings in the instant case, Sylvania moved in the District Court for summary judgment dismissing the complaint, in accordance with Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. This motion came on for hearing upon the pleadings and certain affidavits and other documents filed by the parties. The District Judge, being of opinion that the plaintiff was es-topped from maintaining the action by the final judgment adverse to DuPont in the prior case, granted the motion and dismissed the suit. The propriety of this ruling is the only question on this appeal. That question involves the determination of (1) the basis of the court’s decision in the prior case, and (2) Sylvania’s connection therewith. In connection with the motion for summary judgment," }, { "docid": "21418605", "title": "", "text": "parties are goods of the same descriptive properties. The conclusion is that there is a similarity of fields and goods. 3. Defendant argues there is no clear showing of actual confusion. That matters not. The test in these cases is the likelihood of confusion and proof of actual confusion is not essential. Fox Fur Co. v. Fox Fur Co., D.C.Md., 59 F.Supp. 12, 15; Fox Fur Co. v. Fox Fur Co., D.C.Del., 59 F.Supp. 701, 703; Great Atlantic and Pacific Tea Company v. A. & P. Radio Stores, Inc., D.C.E.D.Pa., 20 F.Supp. 703, 705. 4. In my former decision in Telechron, Inc., v. Telicon Corp., D.C.Del., 97 F.Supp. 131, I stated where the names of plaintiff and defendant are similar both as to sight and sound defendant must give way. In this case the names are almost identical. Plaintiff is entitled to be protected against the invasion of its rights and good will. After argument, defendant by affidavit stated its willingness to change its name in any reasonable fashion in order to remove the challenge of plaintiff. Plaintiff rejected the suggested changes of name. I agree with its action. I would, however, in any decree to be entered approve of plaintiff’s suggested change of name which defendant should adopt. . On Reargument. Since the filing of the above opinion, re-argument has been had on defendant’s renewed motion for summary judgment. The bases of defendant’s position are 1. Delaware law controls, and 2. the case of United States Plywood Co., Inc., v. United Plywood Corporation, 19 Del.Ch. 27, 161 A. 913, is so close in point there can be no question that case should prompt me to reconsider my previous decision in the light of- defendant’s offer to change its name. In support of the application of Delaware law defendant relies on Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; National Fruit Product Co. v. Dwinell-Wright Co., D.C., 47 F.Supp. 499, 504; The Best Foods v. General Mills, D.C.Del., 59 F.Supp." }, { "docid": "6762106", "title": "", "text": "Anson, 1 Cir., 1952, 196 F.2d 330; and that the period in which plaintiffs had been marketing their product was so short that no secondary meaning had attached to it. While unfair competition was originally applied to the palming off of one’s goods as those of a rival trader, and therefore required proof of an established secondary meaning, this limited view has been considerably broadened in recent years, particularly in the State of New York, to include what is an unfair course of dealing, even without proof of an established secondary meaning. Avon Periodicals v. Ziff-Davis Pub. Co., Sup.1952, 113 N.Y.S.2d 737, affirmed 1st Dept.1953, 282 App.Div. 200, 122 N.Y.S.2d 92. The Court there held that while plaintiff’s name on its product had not acquired a secondary meaning, nevertheless, the defendant was not entitled to duplicate plaintiff’s product “to the point that there would be no obvious distinction between the two to the running eye.” The New York Courts have applied the rule that where the equity power of Courts is invoked, the question is not whether a secondary meaning has been established, but whether the acts of a defendant are “fair or unfair, according to principles recognized in equity, and not by ‘The morals of the market place.’ ” See Oneida, Ltd. v. National Silver Co., Sup.Ct.1940, 25 N.Y.S.2d 271, 276. In New York, this rule applied by the Courts has recently been codified into law. Section 361-a of the General Business Law of the State of New York, McK. Consol.Laws, c. 20, Laws 1954, c. 630, effective July 1, 1954, provides: “Likelihood of injury to business reputation or of dilution of the distinctive quality of a trade name or trade-mark shall be a ground for injunctive relief in cases of trademark infringement or unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” The Federal Courts have recognized this development in the law of unfair competition as applied by the Courts in New York. In a recent case, the Court of Appeals of this Circuit" }, { "docid": "21418606", "title": "", "text": "of plaintiff. Plaintiff rejected the suggested changes of name. I agree with its action. I would, however, in any decree to be entered approve of plaintiff’s suggested change of name which defendant should adopt. . On Reargument. Since the filing of the above opinion, re-argument has been had on defendant’s renewed motion for summary judgment. The bases of defendant’s position are 1. Delaware law controls, and 2. the case of United States Plywood Co., Inc., v. United Plywood Corporation, 19 Del.Ch. 27, 161 A. 913, is so close in point there can be no question that case should prompt me to reconsider my previous decision in the light of- defendant’s offer to change its name. In support of the application of Delaware law defendant relies on Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; National Fruit Product Co. v. Dwinell-Wright Co., D.C., 47 F.Supp. 499, 504; The Best Foods v. General Mills, D.C.Del., 59 F.Supp. 201. In my former opinion I applied the law of unfair competition as it has been discussed in the federal cases; and no allusion was made to the law of unfair competition as announced by the Delaware courts. Plaintiff challenges the applicability of Delaware law and argues although jurisdiction is based on diversity of citizenship, and no trade mark infringement is involved, nevertheless, the law of the forum (Delaware) does not govern. The plaintiff’s position is the -acts complained of did not happen in Delaware but occurred in the District of Columbia; and, therefore, the law of the place of wrong should govern. In short, plaintiff’s position is that in Delaware, as a matter of conflict of laws, when a question of tort liability is presented, the conflict of laws rule of Delaware is that in the case of tort, substantive rights are governed by the law of the jurisdiction where the wrong occurred. 1. The difficulty with plaintiff’s position is that there is no showing that the law of the District of Columbia on" } ]

[ { "docid": "22749316", "title": "", "text": "Judge STRAUB dissents in a separate opinion. RAGGI, Circuit Judge. Zhou Yun Zhang, a citizen of the People’s Republic of China, petitions for review of the June 3, 2002 decision of the Board of Immigration Appeals (“BIA” or “Board”) rejecting his claims for asylum and withholding of deportation. In dismissing Zhang’s appeal, the BIA agreed with the Immigration Judge (“IJ”) who presided over the underlying exclusion hearing that Zhang had “not presented consistent, detailed or credible testimony” to support his claim of persecution based on his opposition to China’s family planning policies. In re Zhang, unpublished decision at 2 (B.I.A. June 3, 2002) (hereinafter “BIA Decision”). The BIA concluded that Zhang’s testimony, of “limited credibility and lacking in detail, combined with the few [corroborating] documents” offered in evidence, were insufficient to establish eligibility for relief. Id. Zhang submits that neither the adverse credibility finding nor the sufficiency conclusion is supported by substantial evidence. We disagree and, accordingly, deny the petition for review. 1. Factual Background A. Zhang’s Illegal Entry On January 21, 1993, Zhou Yun Zhang attempted to enter the United States at John F. Kennedy International Airport. Lacking proper documentation, Zhang was denied admission and charged with exclud-ability. See 8 U.S.C. § 1182(a)(6), (7) (Supp. V 1993). An exclusion hearing before an IJ was scheduled for May 11,1993. B. Zhang’s Initial Application for Asylum On April 15, 1993, approximately one month before his scheduled hearing, Zhang filed a pro se application for asylum and withholding of deportation, asserting that he feared forcible sterilization by the Chinese government for his past violation of China’s family planning policies. He stated that he and his wife had two children: a daughter born in 1988, and a son born in 1992. After the birth of the Zhangs’ son, family planning officials fined the couple for exceeding China’s one-child-per-family limit and gave them a deadline to submit to sterilization. Zhang stated that he fled China to avoid forcible sterilization. Despite filing this application for relief from exclusion, Zhang failed to appear for the scheduled May 11, 1993 hearing, prompting the Immigration and Naturalization Service" } ]

[ { "docid": "16272652", "title": "", "text": "to Lianjian Hospital to have an abortion. Her first child was a boy. The parties also submitted numerous documents concerning China’s population control policies, including the United States Department of State 2001 Country Report on Human Rights Practices in China, United States Department of State’s 1998 Profile of Asylum Claims and Country Conditions for China, March 14, 2000, Report by the Canadian government, and an April 2002 Assessment on China prepared by the United Kingdom. Additionally, Zheng submitted an affidavit of John Shields Aird, a specialist on demographic developments and population policy in China, who is also a retired demographer formerly employed at the U.S. Bureau of Census. Aird’s affidavit refutes alleged misrepresentations concerning China’s coercive population control policy in Department of State reports and documents issued by the Canadian government. The IJ denied Zheng’s application for asylum, withholding of removal, and relief under the CAT on July 12, 2002. The IJ found Zheng had not suffered past persecution in China. The IJ further found Zheng had a subjective fear of future persecution, but determined Zheng’s fear of persecution was not objectively reasonable. Because Zheng failed to meet her burden to demonstrate her eligibility for asylum, the IJ concluded Zheng failed to establish her entitlement to withholding of removal. The IJ also found Zheng failed to meet her burden under the CAT. The IJ found both Zheng and her husband to be “generally credible.” Additionally, the IJ found Zheng’s sister to be “generally credible.” However the IJ stated she would “not give great weight to the sister’s testimony.” The following explanation was provided: “[Tjhis Court did not have the sister’s asylum application before this Court to determine the credibility of her own application, with respect to how it affects the respondent’s case.” Accordingly, the IJ did not analyze Zheng’s sister’s testimony concerning her forced abortion in determining whether Zheng’s fear was objectively reasonable. Although the IJ found Zheng had a subjective fear of persecution in China, the IJ concluded “the documentation in the record does not objectively support this fear.” In determining Zheng’s fear was not objectively reasonable, the IJ" }, { "docid": "16272656", "title": "", "text": "“failed to establish that she has suffered past persecution on account of a protected ground, or that she has a well-founded fear of persecution if returned to China to include as a result of their coercive population control policies because she has two United States citizen children.” II We review the BIA’s decision as the final decision of the agency. “To the extent ... the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Falaja v. Gonzales, 406 F.3d 1076, 1081 (8th Cir.2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005)). We review the BIA’s determination that Zheng failed to establish she is eligible for asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d 863, 869 (8th Cir.2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.2004)). Under the substantial evidence standard, we will not overturn the BIA’s decision unless we find, based on the evidence, “no reasonable fact-finder could arrive at the conclusion reached by the BIA.” Id. (quoting S-Cheng, 380 F.3d at 323). The Immigration and Nationality Act provides the Attorney General the discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b). A “refugee” is an alien unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). Congress has expanded the definition of “refugee” to include “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program.” Id. § 1101(a)(42)(B). Such individuals “shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to" }, { "docid": "16272657", "title": "", "text": "reached by the BIA.” Id. (quoting S-Cheng, 380 F.3d at 323). The Immigration and Nationality Act provides the Attorney General the discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b). A “refugee” is an alien unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). Congress has expanded the definition of “refugee” to include “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program.” Id. § 1101(a)(42)(B). Such individuals “shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” Id. Zheng does not claim she has suffered past persecution, but claims she has a well founded fear of future persecution if removed to China based on China’s coercive population control policies. To establish a well founded fear of future persecution, Zheng must show her fear is “both subjectively genuine and objectively reasonable.” Mwangi v. Ashcroft, 388 F.3d 623, 627 (8th Cir.2004) (citing INS v. Car doza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). “Subjectively, [Zheng] must demonstrate with credible evidence that she genuinely fears persecution; objectively, she must demonstrate through credible, direct, and specific evidence that a reasonable person in her position would fear persecution.” Id. (citing Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997)). We hold the BIA’s determination that Zheng failed to establish her fear of persecution was objectively reasonable is not supported by substantial evidence for two reasons. First, we believe the IJ erred by failing to consider Zheng’s sister’s testimony about being forced" }, { "docid": "22316571", "title": "", "text": "PER CURIAM. Petitioner Xu Duan Dong, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of a December 16, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a December 29, 1997 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and for withholding of removal. At the hearing before the IJ, petitioner testified that, having fathered three children, he had suffered persecution, including forcible sterilization, under China’s family-planning policy, and that he had a well-founded fear of further persecution upon return to China. The IJ found petitioner to be not credible, citing inconsistencies among petitioner’s testimony and other evidence in the record, the lack of corroborating documentary evidence, failure of petitioner’s allegations to comport with record evidence on conditions in China, and petitioner’s demeanor at the hearing. Where, as here, the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). In this case, the IJ found that an essential factual allegation underlying petitioner’s asylum claim — that he was forced to undergo surgical sterilization without an anesthetic—was omitted from petitioner’s three asylum applications. Although petitioner eventually alleged—in a brief affidavit supplementing his third asylum application—that he was forcibly sterilized, the IJ reasoned that a delay" }, { "docid": "22759369", "title": "", "text": "Present: MINER, SACK, SOTOMAYOR, Circuit Judges. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review of the decision of the Board of Immigration Appeals (“BIA”) is hereby DENIED. Yu Yin Yang petitions for review of a BIA decision affirming the Immigration Judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We assume the parties’ familiarity with the underlying facts and procedural history. This Court generally reviews only the final order of the BIA, but when the BIA adopts the IJ’s decision and supplements it, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the IJ’s and BIA’s factual findings under the substantial evidence standard, and as such, “a finding will stand if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). This Court also uses the substantial evidence standard to review credibility determinations, and its review of an adverse credibility determination is “highly deferential.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005)(per curiam). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his [or her] claims of persecution, or on contrary evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004). In this case, the IJ and BIA found that the following discrepancies, inconsistencies, and implausibilities, inter alia, caused Yang’s testimony not to be credible: (1) Yang testified that she had an IUD inserted in January 1998, but submitted a document reflecting that she had an IUD inserted in July 1998; (2) Yang testified that after the IUD was inserted, she was required to undergo three or four" }, { "docid": "16272655", "title": "", "text": "sterilization no longer tolerated, and efforts to increase the pro fessionalism of family planning workers.” The UK Assessment also states “in 1999, there have been signs that the government is beginning to relax its policies in the cities” and “minorities in some rural areas are permitted to have four children.” The report prepared by the Canadian government similarly concludes “[t]here is less effective enforcement of the ‘one-child’ policy [in the Fujian Province] than in other parts of China.” Zheng appealed to the BIA arguing the IJ erred in finding Zheng did not establish a well founded fear of future persecution. Zheng also claimed the IJ violated her due process rights to a full and fair hearing. The BIA dismissed the appeal. The BIA found no merit in Zheng’s claims that her due process rights were violated. On the merits, the BIA adopted the facts set forth by the IJ and affirmed the IJ’s determinations that Zheng failed to establish eligibility for asylum, withholding of removal, and protection under the CAT. Specifically, the BIA found Zheng “failed to establish that she has suffered past persecution on account of a protected ground, or that she has a well-founded fear of persecution if returned to China to include as a result of their coercive population control policies because she has two United States citizen children.” II We review the BIA’s decision as the final decision of the agency. “To the extent ... the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Falaja v. Gonzales, 406 F.3d 1076, 1081 (8th Cir.2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005)). We review the BIA’s determination that Zheng failed to establish she is eligible for asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d 863, 869 (8th Cir.2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.2004)). Under the substantial evidence standard, we will not overturn the BIA’s decision unless we find, based on the evidence, “no reasonable fact-finder could arrive at the conclusion" }, { "docid": "16272667", "title": "", "text": "is here.” Cheng testified she and her husband planned to have more children. She also admitted she lied in her earlier application for asylum. Id. The IJ determined Cheng was not credible. Id. at 323. Furthermore, the IJ concluded Cheng’s fear of forced abortion and sterilization was based on speculative facts. Id. The BIA dismissed the appeal. Id. at 322. We denied Cheng’s petition for review. We affirmed BIA’s adoption of the IJ’s finding that Cheng lacked credibility because Cheng lied in her entry application and first asylum application. Id. at 323. We held that based on Cheng’s track record, the BIA had a reasoned basis to disbelieve Cheng’s claims that she planned to have a second child and subjectively feared China’s population control policies. Id. We also found substantial evidence supported the BIA’s finding Cheng’s fear of forced abortion and sterilization was not objectively reasonable because it was based on hypothetical and speculative facts. Id. We found Cheng did not show she was in violation of the one-child policy by having a United States born child living in the United States, and that it was speculative to conclude Chinese authorities would learn of the child in the United States. This was based on Cheng’s testimony suggesting her husband and son would not accompany ber to China. Id. We noted according to State Department and Canadian reports, the Chinese government had replaced sanctions with incentives to encourage compliance with the law, there was no evidence of forced sterilizations or abortions in recent years particularly in Cheng’s province, and Chinese authorities urged sterilizations after a second or third child, and up to a third of families in Cheng’s province had three or more children. Id. There are more pertinent differences than pertinent similarities between our. decision in S-Cheng and the instant case. In S-Cheng, the IJ found Cheng lacked credibility and did not have a subjective fear of persecution. In the instant case, the IJ found Zheng to be credible and found Zheng had a subjective fear of persecution based on China’s coercive population control policies. In S-Cheng, we held Cheng" }, { "docid": "16272654", "title": "", "text": "explained: “The current information in the record regarding China reflects that the forced coercive family planning policies are not being followed in Fujian Province and that Fujian Province is lax on enforcing family planning policies.” The IJ found Zheng “failed to also prove to the Court that she would be persecuted because she has had two children born in the United States.” The IJ also found “the respondent has failed to show that the threat of persecution exists countrywide,” noting “According to the country information, there are clearly areas in China in which a person, who wants to have two or more children, even three or four children, can live and have that number of children.” In reaching its finding, the IJ relied primarily on the 2002 UK Assessment and the 2000 report by the Canadian government. According to the 2002 UK Assessment, “[f]or differing reasons, most authorities agree that the Fujian Province is lax in implementing the birth control policies” and “[t]he authorities work by incentive schemes rather than coercion, with forced abortion and sterilization no longer tolerated, and efforts to increase the pro fessionalism of family planning workers.” The UK Assessment also states “in 1999, there have been signs that the government is beginning to relax its policies in the cities” and “minorities in some rural areas are permitted to have four children.” The report prepared by the Canadian government similarly concludes “[t]here is less effective enforcement of the ‘one-child’ policy [in the Fujian Province] than in other parts of China.” Zheng appealed to the BIA arguing the IJ erred in finding Zheng did not establish a well founded fear of future persecution. Zheng also claimed the IJ violated her due process rights to a full and fair hearing. The BIA dismissed the appeal. The BIA found no merit in Zheng’s claims that her due process rights were violated. On the merits, the BIA adopted the facts set forth by the IJ and affirmed the IJ’s determinations that Zheng failed to establish eligibility for asylum, withholding of removal, and protection under the CAT. Specifically, the BIA found Zheng" }, { "docid": "16272649", "title": "", "text": "BYE, Circuit Judge. Feng Ying Zheng, a citizen of the People’s Republic of China, claims she fears persecution if removed to China because of the country’s coercive population control policies. Zheng seeks review of the Board of Immigration Appeal’s (BIA) final order affirming the Immigration Judge’s (IJ) decision denying her application for asylum, withholding of removal, and protection under Article III of the Convention Against Torture (CAT). Because we find the BIA erred by failing to consider significant evidence supporting Zheng’s claim, we conclude the denial of relief was not supported by substantial evidence. Accordingly, we vacate the BIA’s order of removal and remand for further proceedings. I Zheng was born on March 12, 1970, in Guantou Village, Lian Jiang City, in the Fujian Province of China. She entered the United States without inspection on September 12, 1993. On May 3, 1996, Zheng married Chang Qin Lin. Zheng and her husband presently have three United States citizen children: a son, born January 19, 1997; and two daughters, born September 13, 2000, and July 12, 2003. Zheng’s sister and brother live in New York; both have been granted asylum based on China’s birth control policies. On January 3, 1995, Zheng filed an application for asylum. On July 22,1999, the Immigration and Naturalization Service, now the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security, commenced removal proceedings against Zheng by issuing a Notice to Appear. The IJ held an eviden-tiary hearing on Zheng’s application for asylum, withholding of removal, and relief under the CAT on July 18, 2001. Zheng, her husband, and her sister testified. At the hearing, Zheng testified she feared returning to China because she believes upon return she will be arrested immediately and either she or her husband will be forcibly sterilized because she had a second child when her first child was a boy. She testified she and her husband would like to have more children and do not practice any form of birth control. She testified she fears she will be subject to forced sterilization or abortion because of China’s family planning policies." }, { "docid": "22616636", "title": "", "text": "PER CURIAM. Jian Xing Huang petitions for review of a December 19, 2002 order of the Board of Immigration Appeals (“BIA”) that denied his application for asylum and withholding of removal, and in so doing, reversed the decision of the Immigration Judge (“IJ”). Huang argues that the BIA (i) applied the incorrect standard of review in reversing the IJ, and (ii) erroneously concluded that he had failed to establish a likelihood of future persecution based on his having had two children in this country, in violation of China’s family planning policy. Because the BIA employed the correct standard of review, and because we agree with the BIA that Huang did not meet his burden, we deny the petition. I Huang entered the United States illegally sometime in 1990. In 1998, he filed an application for asylum and withholding of removal based on his participation in the student democracy movement. While his application was pending, Huang met and married a Chinese citizen here in the United States. She soon gave birth to a daughter. In 1999, the INS served Huang with a notice to appear. When the hearing opened in the spring of 2000, Huang filed an amended asylum application citing his fear of future persecution, in particular, that he would be forcibly sterilized should he return to China. He cited Chinese family planning policy permitting only one child and the forcible sterilization of his sister-in-law. The hearing was adjourned to December 2000. By then, Huang’s wife was pregnant with their second child. The IJ granted Huang’s application for asylum and withholding of removal finding that it was “reasonable” for Huang to fear being subjected to forcible sterilization if removed to China. The INS argued on appeal to the BIA that Huang had not sustained his burden of showing a well-founded fear of future persecution, because the evidence of country conditions undermined the claim and because Huang had provided little evidence as to the circumstances surrounding the alleged forced sterilization of his sister-in-law. Moreover, there was no evidence in the record as to how (if at all) Chinese family planning policy" }, { "docid": "22715351", "title": "", "text": "and that she feared future persecution for illegally departing China. In September 1999, Jin married Jian Geng Zheng, and in October of that year, she appeared at a hearing before an Immigration Judge (IJ). Finding the petitioner not credible, the IJ issued a decision in December 1999 denying Jin’s applications for relief and ordering her removed. In April 2000, while her appeal was pending before the BIA, Jin had her first child. Jin’s removal order became final in September 2002 when the BIA affirmed the I J’s decision; Jin did not file a petition for review in this court. In January 2005, Jin gave birth to her second child, and in July 2005, nearly three years after the BIA issued a final order of removal, Jin filed a motion to reopen her proceedings, claiming that, in light of China’s family planning policies, the birth of her second child constituted changed personal circumstances that affected her eligibility for asylum. She also submitted a second asylum application accompanied by supporting documents. In September 2005, the BIA denied Jin’s untimely motion, finding that she had not demonstrated changed country conditions as required for the Board to. consider a motion to reopen filed more than ninety days after the entry of a final removal order. The BIA did not address Jin’s successive asylum petition but construed Jin’s motion only as a motion to reopen. Jin filed a timely petition for review of the Board’s decision in this court. II. Shan Hu Zheng In December 1994, Petitioner Shan Hu Zheng left Fujian Province, China, for the United States, where she arrivéd without inspection. ■ She filed an initial asylum application, alleging religious persecution. In November 1995, the IJ denied Zheng’s application and ordered her deported, finding that the evidence of harassment that she had presented did not rise to the level of persecution. The BIA affirmed in Mav 1996. In October 2000, Zheng married Hong Tao Lin, a naturalized U.S. citizen, and later gave birth to two children — one in February 2002, and another in May 2003. After filing unsuccessful motions to reopen in" }, { "docid": "22735504", "title": "", "text": "his asylum application and the time of his motion to reopen. On October 9, 2002, the BIA denied his motion to reopen and inasmuch as Zheng did not file a petition for review of that denial, no court of appeals has reviewed that denial and we, of course, do not review it now. On August 18, 2006, Zheng filed a second motion to reopen his case, contending that he should be granted asylum because of changed circumstances in China by reason of its enhanced enforcement of its population control policies as compared to those at the time that the immigration judge and BIA denied his asylum application. Moreover, he argued that his counsel had been ineffective during his original asylum proceedings that an immigration judge had dismissed because of his failure to appear for his hearing. Zheng submitted several documents in support of his motion as evidence of those changed circumstances and filed a personal affidavit which stated: In my recent phone contacts with my family and friends in China, I was told that in the past year, the government had increased the use of labor camp, forced abortions and sterilizations. I was also told that a couple is only allowed to have one child. Those who resist and violate the new law would not only be forced to undergo abortion operations or sterilization procedures, but also face criminal prosecution pursuant to the Population and Family Planning-Law. What I heard is consistent with the 2005 County [sic] Report on China by the [State Department]. Id. at 55. Zheng further stated in his affidavit: Such persecutions have done irreparable damage[ ] to many families of young couples. My neighbor Zhou Zheng is an example. [He] and his wife Lin, Hui ha[d] their first daughter several years ago, ... and [ ] secretly gave birth to their second daughter. Unfortunately, the government family planning officials found out and forced Zhou Zheng to undergo sterilization immediately on 04/10/2006. My neighbor Zheng, Qun is another victim. After his wife gave birth to [a boy and a girl] ..., on Feb[.] 28, 2006, Zheng, Qun" }, { "docid": "23344900", "title": "", "text": "PER CURIAM. Petitioner Zhou Yi Ni, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of an October 28, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a November 23, 1999 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Petitioner also appeals the BIA’s denial of a remand for consideration of his claims under the Convention Against Torture (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We begin by addressing petitioner’s application for asylum and withholding of removal. Where, as here, the BIA summarily affirmed the IJ’s decision to deny asylum, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Petitioner’s asylum claim rests on the persecution he allegedly suffered for violating China’s coercive family planning policy. In particular, petitioner testified that his wife was involuntarily sterilized by China’s authorities after the birth of the couple’s second child. Petitioner further claimed that, upon return to China, he would be persecuted for having fathered two children. The IJ found petitioner not credible, based in part on serious contradictions between petitioner’s account of his wife’s sterilization and his wife’s own asylum application. The IJ also found that petitioner had not established that he had himself suffered past persecution or that he had a well-founded fear of future persecution. Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude" }, { "docid": "23259749", "title": "", "text": "China, able to have children and has not been sterilized and the respondent himself had never attempted to have additional children during a five year-period thereafter. Further, with respect to the matter of the “Household Register,” the IJ expressed puzzlement as to why Zheng “would be placed as head of household despite his assertion that he was a fugitive from the public security bureau, the very authority that would issue a household register.” Finally, the IJ concluded “that the respondents presentations appear to be inconsistent, contradictory both with his direct testimony offered to the Court as well as explanations that he attempted to provide with questions that contained inconsistencies or problems, problems of coherency and plausibility with his claim.” Zheng timely filed an appeal to the BIA. This appeal was rejected in a brief decision, dated February 22, 2007, “adopting] and affirming] the decision of the Immigration Judge.” The BIA specifically stated that “[t]he record supports the Immigration Judge’s finding that the respondent failed to demonstrate by clear and convincing evidence that he filed his asylum application within 1 year of arriving in the United States” and that “[t]he record also supports the Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng then filed a timely petition for review in this Court. ANALYSIS We have recently reiterated the relevant standards of review to be employed on this appeal: “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t. of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (alteration and internal quotation marks omitted). We review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA 510 F.3d 377, 379 (2d Cir.2007). Pinto-Montoya v. Mukasey, 540 F.3d 126, 129" }, { "docid": "16272669", "title": "", "text": "failed to provide credible specific evidence demonstrating her fear of forced abortion or sterilization was objectively reasonable. In the instant case, Zheng presented credible specific evidence by introducing the testimony of her sister concerning her forced abortion in China. In S-Cheng, Cheng failed to provide evidence demonstrating forced sterilizations or abortions occurred in recent years to rebut the general reports that implementation of the one-child policy was becoming lax in the Fujian Province. In the instant case, Zheng’s sister’s testimony undercuts such claims that forced abortions or sterilizations no longer occur in Fujian. In S-Cheng, we found that Cheng’s testimony suggested she would not take her United States born child to China if forced to leave the United States and thus concluded Cheng failed to show Chinese officials would find out about her son in the United States. In the instant case, there is no evidence suggesting Zheng would leave without her three children and husband if removed to China. Moreover, Zheng presented Aird’s affidavit which concludes Chinese authorities would have reason to enforce the one-child policy against United States born children. In S-Cheng, we held substantial evidence supported the BIA’s determination Cheng’s claim she wanted to have more children was not credible. In the instant case, the IJ found credible Zheng’s claim she planned to have more children. “When an agency makes a finding of fact without mentioning or analyzing significant evidence, its decision should be reconsidered.” Habtemicael v. Ashcroft, 370 F.3d 774, 783 (8th Cir.2004) (citing Palavra v. INS, 287 F.3d 690, 693 (8th Cir.2002)). Because we believe the BIA erred by failing to consider significant evidence, we vacate the BIA’s order denying Zheng’s application for asylum and remand the case for reconsideration in light of this evidence. Additionally, because the BIA denied Zheng’s request for withholding of removal without considering Zheng’s sister’s testimony and Aird’s affidavit, we remand Zheng’s request for withholding of removal for reconsideration in light of our holding with respect to Zheng’s asylum claim. Ill The government contends we lack jurisdiction to review Zheng’s request for protection under the CAT because Zheng failed to" }, { "docid": "22786311", "title": "", "text": "credible, the IJ determined that Zheng failed to show past persecution or a well-founded fear of future persecution. On appeal, the BIA affirmed the IJ’s decision without opinion. II. Standard of Review The IJ’s opinion, which was summarily adopted by the BIA, is the final agency determination subject to our review. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). We review all legal issues de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.2004). We review the IJ’s factual determinations under the substantial evidence test and must affirm if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Al Najjar, 257 F.3d at 1284. “Under this highly deferential standard of review, the IJ’s decision can be reversed only if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir.2005) (citations omitted). III. Discussion Zheng contends he suffered past persecution sufficient to compel asylum and withholding of removal given these events: (1) the Chinese government detained him; (2) he lost his job and was unable to find other employment in his home city; and (3) he was subjected to periodic searches by officials in the village where he came to reside. Zheng further asserts that because the Chinese government continues to persecute Falun Gong practitioners, his continued active participation in Falun Gong gives him a well-founded fear of future persecution should he be made to return to China. After review, we conclude that the evidence does not compel a conclusion that Zheng was entitled to asylum and withholding of removal. The Attorney General or the Secretary of Homeland Security has discretion to grant asylum if an alien meets the INA’s definition of a “refugee.” INA § 208(b)(1); 8 U.S.C. § 1158(b)(1)(A). A “refugee” is a person: who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear" }, { "docid": "23259750", "title": "", "text": "asylum application within 1 year of arriving in the United States” and that “[t]he record also supports the Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng then filed a timely petition for review in this Court. ANALYSIS We have recently reiterated the relevant standards of review to be employed on this appeal: “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t. of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (alteration and internal quotation marks omitted). We review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA 510 F.3d 377, 379 (2d Cir.2007). Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir.2008) (per curiam). In order to be considered a refugee and therefore eligible for asylum, the INA provides that Zheng must show that he has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). The statute further provides that an individual, such as Zheng, who alleges that he has engaged in “resistance to a coercive population control program” may be eligible for relief as one who has been persecuted, or will be persecuted, on account of his political opinion. Id.; see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (en banc). Past persecution alone is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[ ] rise to a rebuttable presumption of a well-founded fear of future persecution.” Poradisova v. Gonzales, 420 F.3d 70, 78" }, { "docid": "16272653", "title": "", "text": "Zheng’s fear of persecution was not objectively reasonable. Because Zheng failed to meet her burden to demonstrate her eligibility for asylum, the IJ concluded Zheng failed to establish her entitlement to withholding of removal. The IJ also found Zheng failed to meet her burden under the CAT. The IJ found both Zheng and her husband to be “generally credible.” Additionally, the IJ found Zheng’s sister to be “generally credible.” However the IJ stated she would “not give great weight to the sister’s testimony.” The following explanation was provided: “[Tjhis Court did not have the sister’s asylum application before this Court to determine the credibility of her own application, with respect to how it affects the respondent’s case.” Accordingly, the IJ did not analyze Zheng’s sister’s testimony concerning her forced abortion in determining whether Zheng’s fear was objectively reasonable. Although the IJ found Zheng had a subjective fear of persecution in China, the IJ concluded “the documentation in the record does not objectively support this fear.” In determining Zheng’s fear was not objectively reasonable, the IJ explained: “The current information in the record regarding China reflects that the forced coercive family planning policies are not being followed in Fujian Province and that Fujian Province is lax on enforcing family planning policies.” The IJ found Zheng “failed to also prove to the Court that she would be persecuted because she has had two children born in the United States.” The IJ also found “the respondent has failed to show that the threat of persecution exists countrywide,” noting “According to the country information, there are clearly areas in China in which a person, who wants to have two or more children, even three or four children, can live and have that number of children.” In reaching its finding, the IJ relied primarily on the 2002 UK Assessment and the 2000 report by the Canadian government. According to the 2002 UK Assessment, “[f]or differing reasons, most authorities agree that the Fujian Province is lax in implementing the birth control policies” and “[t]he authorities work by incentive schemes rather than coercion, with forced abortion and" }, { "docid": "21282131", "title": "", "text": "LOKEN, Chief Judge. Wen Ying Zheng, a native and citizen of the People’s Republic of China, entered the United States in 1994. Facing deportation in September 1997, Zheng applied for asylum, withholding of deportation, and relief under the Convention Against Torture, claiming a fear of persecution if she returned to China on account of her past political activities. After the birth of a child in 1998, Zheng claimed that she also feared persecution and forced sterilization under China’s One Child policy. See 8 U.S.C. § 1101(a)(42). In June 2003, an immigration judge denied Zheng’s claims for relief, granted her voluntary departure, and ordered her removed. Zheng appealed, the BIA summarily affirmed, and Zheng dismissed a petition for review to this court in November 2004. In September 2005, Zheng filed a motion with the BIA for leave to file a successive asylum application. Relying on 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(4), she claimed that the application was not barred because the birth of her fourth child created an increased risk of persecution under China’s One Child policy. The BIA denied the motion, holding that an alien who is under a final order of removal must successfully move to reopen the case in order to file a successive asylum application. The BIA then treated Zheng’s motion as a motion to reopen and denied it as untimely because Zheng submitted no evidence of changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(i-ii); 8 C.F.R. § 1003.2(c)(3)(ii). Zheng petitions for judicial review, arguing that the BIA committed an error of law in ruling that her successive asylum application must meet the more stringent requirements of a motion to reopen. After the case was submitted, two of our sister circuits issued decisions upholding the BIA’s construction of these statutes and regulations in factually similar cases. See Chen v. Gonzales, 498 F.3d 758 (7th Cir.2007); Huang v. Attorney General, No. 06-3013, slip op., 249 Fed.Appx. 293, 2007 WL 2815598 (3d Cir. Sept.28, 2007); accord Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). We agree with these decisions and therefore deny the petition for" }, { "docid": "22773888", "title": "", "text": "a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as a ‘fact’ things that have not yet occurred.” Id. (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A.2008)). The Board did not rule clearly erroneous the IJ’s finding that local authorities “would coercively sterilize” Huang. Instead, the Board turned its attention to State Department reports on country conditions including the Profiles of Asylum Claims and Country Conditions, which it called “highly probative evidence,” 25 I. & N. Dec. at 213, “usually the best source of information on conditions in foreign nations,” id. (citing Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006)), and entitled to “ ‘special weight,’ ” id. (quoting Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n. 6 (9th Cir.2010)). Then, noting that it had “considered the State Department documents on country conditions along with the particularized evidence presented by the applicant,” the Board concluded “that [Huang] has not carried her burden of establishing a well-founded fear that the family planning policy will be enforced against her through means constituting persecution upon her return to China.” Id. (citing Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007)). Discussion Initially, we grant the motions of the American Immigration Lawyers Association and the “Law Professors, Instructors, and Practitioners” to submit amicus curiae briefs. See Fed. R.App. P. 29. Under the circumstances of this case, we have reviewed only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Our applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) (2005); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). I. BIA’s Review of Fact-Finding Concerning a Future Event We first consider the Board’s treatment of the IJ’s finding that if Huang is returned to China, the local authorities “would coercively sterilize her.” The Board did not rule whether this finding was clearly erroneous. Instead, it ruled that an IJ’s prediction that local authorities will impose a particular" } ]

[ { "docid": "11491483", "title": "", "text": "LEVIN H. CAMPBELL, Circuit Judge. This appeal involves the adequacy of allegations in a complaint brought in a stockholder’s derivative suit as to why the plaintiff failed to make a demand on the directors to correct the alleged wrongs before suit was brought. Applying Federal Rule of Civil Procedure 23.1 and the standards developed in In re Kauffman Mutual Fund Actions, 479 F.2d 257 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973), we affirm dismissal of the suit. The complaint at issue here was brought by Charles Heit, a stockholder of Baird Atomic, Inc. both at present and at all other relevant times, on behalf of the corporation. It alleged that the Board of Directors of Baird Atomic, forewarned of a potential contest for control being considered by a minority shareholder, issued a large block of new stock which it placed, for the most part, in the hands of three of its seven members. According to the complaint, the voting stock in the company thus was increased from 885,130 to 1,086,230 shares, and 188,600 of the 201,100- new shares went to defendants Baird, Dempsey, and Medrozian, directors and officers of Baird Atomic, who previously had controlled a total of approximately 55,000 shares. The purchase price ranged from $1.95 to $2.00 a share, but favorable financing arrangements permitted the three defendants to obtain the stock through an initial outlay of only $10,750. The complaint alleged these transactions were effected only to thwart the threatened control contest and that they constituted a violation of the Securities Exchange Act and Rule 10b-5 as well as a breach of common law fiduciary duties. Plaintiff excused his failure to seek relief for these wrongs from the directors as follows: “No demand has been made by plaintiff upon the directors of B-A to institute and prosecute this action because all of said directors are named as defendants herein, and they have participated in, authorized and approved and are personally liable for the wrongs complained of in this action; and any demand upon them to instiute [sic] such an action would" } ]

[ { "docid": "18400298", "title": "", "text": "litigation would have on an upcoming (and apparently as yet unscheduled) rate hearing before the New Hampshire Public Utilities Commission (“PUC”), and the defense by those named therein of the pending class action complaints. Accordingly, while a Court should give consideration to “outside entanglements making it likely that the interests of the other stockholders will be disregarded in the management of the suit”, G.A. Enterprises, Inc. v. Leisure Living Communities, Inc., 517 F.2d 24, 27 (1st Cir.1975), a stockholder sharing a common interest in the subject matter of the suit is not to be held an inadequate representative by “purely hypothetical, potential or remote conflicts of interest”. Id. The state of the record before the Court is not sufficient to find that the actions could be dismissed for failure of these derivative plaintiffs to adequately represent the interests of similarly situated shareholders. Nor are the subsequently-filed class actions sufficiently duplicative of the derivative actions to warrant a finding that a stay of these proceedings should be had. As there is no indication of a scheduled rate base hearing before PUC, and as the Court finds that continuation of the action will not necessarily interfere with the other class actions, the alternative remedy of stay is not available. Of considerably more merit is the second argument of the defendants in the derivative action cases to the effect that the complaints fail to “allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors ... and the reasons for his failure to obtain the action or for not making the effort.” Rule 23.1, supra. Described as “not an ordinary, but an exceptional rule of pleading, serving a special purpose, and requiring a different judicial approach”, In re Kauffman Mutual Fund Actions, 479 F.2d 257, 263 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973), the prelitigation demand on corporate directors mandated by Rule 23.1, supra, is vigorously enforced in the First Circuit. Grossman v. Johnson, 674 F.2d 115, 125 (1st Cir.), cert. denied sub nom. Grossman v. Fidelity" }, { "docid": "5273871", "title": "", "text": "essentially a requirement that a stockholder exhaust his intra-corporate remedies before bringing a derivative action”). Though this court has not yet ruled squarely on the precise point, it has observed that the role of demand is to alert the director before suit is instituted. In re Kauffman Mutual Fund Actions, supra, 479 F.2d at 263, we said that “to be allowed, sua sponte, to place himself in charge without first affording the directors the opportunity to occupy their normal status, a stockholder must show that his case is exceptional,” i.e. that demand is excused (emphasis added). The same postulate was expressed in Heit v. Baird, supra, 567 F.2d at 1162 (n.6): “The purpose of the demand requirement is, of course, to require resort to the body legally charged with conduct of the company’s affairs before licensing suit in the company’s name by persons not so charged” (emphasis added). Under this court’s practice of vigorous enforcement of the Rule (Heit v. Baird, 567 F.2d at 1160; see also In re Kauffman Mutual Fund Actions, 479 F.2d at 263, 267), and of the generally “strict view” the court takes “of the requirement of prior demand” (Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir. 1978)), these statements should be, and are, now embodied in an explicit holding. It makes no difference that in this instance the belated demand was made at the suggestion of the District Court. The judge’s colloquy with counsel shows that the court was simply making that suggestion, as the opinion below says, “in the hope that expensive and lengthy litigation could be avoided”; if the directors responded favorably to plaintiff, in whole or in part, that would clearly be the result. Grossman then made his demand voluntarily, with his expressed understanding “that the demand letter would not be deemed a waiver by any party of rights which it otherwise possessed.” There was no direction by the court and no agreement that the late demand would rectify the initial failure to make a demand prior to suit. IV Because we hold that the suit must be" }, { "docid": "5273864", "title": "", "text": "demand. He takes a parallel position for the “recapture” part of his action (which is not brought under § 36(b) and as to which plaintiff makes no claim of a complete exemption from the Rule). Rule 23.1 mandates that the complaint “shall also allege with particularity the efforts, if any, made by plaintiff to obtain the action he desires from the directors * * * and the reasons for his failure to obtain the action or for not making the effort.” In this circuit that requirement has been “vigorously enforced.” Heit v. Baird, supra, 567 F.2d at 1160. “The futility of making the demand required by Rule 23.1 must be gauged at the time the derivative action is commenced, not afterward with the benefit of hindsight.” Cramer v. General Telephone & Electronics Corp., 582 F.2d 259, 276 (3d Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 90 (1979). 1. On the advisory fees (the § 36(b) claim), plaintiff’s only excuses are that the Fund’s directors were controlled by or affiliated with FMR, had participated in the alleged wrong, and had announced their opposition to the suit. All three reasons are inadequate. Of the eight Fund director-defendants, only three were affiliated with FMR; five were unaffiliated and “disinterested.” As the court said in Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir. 1978), and In re Kauffman Mutual Fund Actions, 479 F.2d 257, 264 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973), a majority of disinterested directors negatives general allegations of control-by-the-adviser, comparable to those plaintiff makes here. A proper excuse of control or domination calls for particularized allegations and specific facts — which are absent both in the initial and the amended complaint. As for mere “participation” or “acquiescence” by the directors in the level of the challenged advisory fees, that generality, too, is an insufficient excuse where the corporate activity is the normal one of setting and paying advisory fees; on this point, there also are no particulars asserting that a majority of the directors engaged" }, { "docid": "17423597", "title": "", "text": "comparable authority ... and the reasons for his failure to obtain the action or for not making the effort. Id. Plaintiff states the following in his complaint: Demand was not made on the directors because, inter alia, it would be futile since the directors lack independence and each benefitted personally from the wrongful conduct and cannot be expected to bring suit against him or herself. (First Am. V. Derivative Compl., Docket No. 8, ¶ 1.) Plaintiff also includes a section in the complaint that he entitles “Demand Futility.” (Id. ¶¶ 36-37.) In light of the foregoing, plaintiff appears to have chosen to allege “the reasons ... for not making the effort.” Fed.R.Civ.P. 23.1. Defendants contend that plaintiffs attempt to comply with Rule 23.1 falls short. Specifically, defendants assert that plaintiff fails to plead (1) with particularity (2) an acceptable reason for why demand would have been futile. According to defendants, plaintiffs suit therefore must be dismissed in its entirety. Defendants correctly point out that compliance with Rule 23.1 requires more than pleading with particularity any reason for why demand on a corporation would have been futile. The law of the state of incorporation provides the circumstances under which demand would be futile. See Gonzalez Turul v. Rogatol Distribs., Inc., 951 F.2d 1, 2 (1st Cir.1991) (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)); see also, e.g., In re Silicon Graphics Inc. Secs. Litig., 183 F.3d 970, 989-90 (9th Cir.1999). 2. Substantive Delaware Law Applied Under Rule 23.1 Delaware appears to be the state of incorporation for defendant corporation Hancock. In the complaint, plaintiff alleged Massachusetts as the state of incorporation. Defendants, in their motion to dismiss, contend that Delaware is the state of incorporation. Ordinarily, I accept the well-pleaded allegations of plaintiffs complaint as true when considering a motion to dismiss, and I do not look outside the four corners of the complaint. In appropriate circumstances, however, some exceptions apply to this ordinary course. See Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir.1993). For example, I may look to documents" }, { "docid": "17423603", "title": "", "text": "though “[cjourts have tended to vary in the rigor with which they enforce Rule 23.1[,] in this circuit the Rule has been vigorously enforced.” Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). The First Circuit has reiterated this position in another opinion: This circuit vigorously enforces [the Rule 23.1] requirement and will dismiss derivative actions when plaintiffs do not comply.... In doing so, we have recognized the important policy behind the demand requirement.... When shareholders undertake [a derivative] action it implies that the corporation is unwilling or unable to conduct a suit on its own behalf. Clearly, it should first be ascertained whether the corporation is unwilling to undertake the action. Gonzalez Turul, 951 F.2d at 2 (citations omitted). Similarly, the Supreme Court of Delaware has said that substantive Delaware law (such as Aronson and Rales) applied under the Delaware equivalent to Fed. R.Civ.P. 23.1 sets a high bar for demand futility. In a recent case, the court stated twice that the requirement of particularized pleadings is a strict threshold, notwithstanding the potential underlying merits. The court began the case with the following: This is potentially a very troubling case on the merits.... But our concerns about lavish executive compensation and our institutional aspirations that boards of directors of Delaware corporations live up to the highest standards of good corporate practices do not translate into a holding that these plaintiffs have set forth particularized facts excusing a pre-suit demand under our law and our pleading requirements. Brehm, 746 A.2d at 249. The court then concluded the case with this similar language: One can understand why [the] stockholders would be upset with such an extraordinarily lucrative compensation agreement and termination payout awarded a company president who served for only a little over a year and who underperformed to the extent alleged. That said, there is a very large— though not insurmountable — burden on stockholders who believe they should pursue the remedy of a derivative suit instead of selling their stock or seeking to reform or oust these directors from office. Delaware has pleading rules and an extensive judicial gloss" }, { "docid": "21296188", "title": "", "text": "derivative suit for failure to plead demand or excuse is of course a type of dismissal for inadequate pleadings, it is also a dismissal for failure to accomplish a precondition, which is a failure that may be remedied by the time the second suit is filed. The Supreme Court’s decision in Costello v. United States, 365 U.S. 265, 285-88, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961), confirmed that dismissal for failure to satisfy a precondition to suit should not bar a subsequent suit in which the defect has been cured. Accord Lebrón-Ríos v. U.S. Marshal Serv., 341 F.3d 7, 13 (1st Cir.2003) (dismissal of suit for failure to exhaust administrative remedies would not preclude later suit if plaintiffs exhausted remedies); Saylor v. Lindsley, 391 F.2d 965, 968-69 (2d Cir.1968) (dismissal of derivative suit for failure to post bond did not bar subsequent suit on same claim if bond posted); Restatement (Second) of Judgments § 20(2) (“A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiffs failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.”). We acted consistently with this principle in Gonzalez Turul v. Rogatol Distributors, Inc., 951 F.2d 1 (1st Cir.1991). There, we reversed a judgment after trial in a derivative suit because the plaintiff had not alleged in the complaint either that she had made demand on the directors' or that demand would have been futile, id. at 1; however, we dismissed the complaint “without prejudice,” id. at 3, with the implication that suit could be refiled if the plaintiff complied with Rule 23.1. Thus, the parties’ respective rights may have altered over the course of time between the two suits, which may make preclusion inappropriate. See DeCosta v. Viacom Int’l, Inc., 981 F.2d 602, 610-11 (1st Cir.1992). We therefore conclude that dismissal for failure to plead demand under Rule 23.1 is not entirely analogous to dismissal" }, { "docid": "17423602", "title": "", "text": "23.1 is whether, for challenged transactions not made by the board as a whole, plaintiffs complaint pleads with particularity facts that meet the Rales test. Both of these tests {Aronson and Rales) rely on a “reasonable doubt” standard. It is important to note that the Delaware Supreme Court has conclude[d] that it would be neither practicable nor wise to attempt to formulate a criterion of general application for determining reasonable doubt.... Reasonable doubt must be decided by the trial court on a case-by-case basis employing an objective analysis. Grobow v. Perot, 539 A.2d 180, 186 (Del.1988), overruled on other grounds by Brehm, 746 A.2d 244. Aronson, which “introduced the term ‘reasonable doubt’ into corporate derivative jurisprudence,” Grimes v. Donald, 673 A.2d 1207, 1217 (Del.1996), overruled on other grounds by Brehm, 746 A.2d 244, made expressly clear that “the entire review is factual in nature.” Aronson, 473 A.2d at 815. 3. Other Rule 23.1 Considerations I note at this time several other important principles that guide consideration of a Rule 23.1 motion to dismiss. First, even though “[cjourts have tended to vary in the rigor with which they enforce Rule 23.1[,] in this circuit the Rule has been vigorously enforced.” Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). The First Circuit has reiterated this position in another opinion: This circuit vigorously enforces [the Rule 23.1] requirement and will dismiss derivative actions when plaintiffs do not comply.... In doing so, we have recognized the important policy behind the demand requirement.... When shareholders undertake [a derivative] action it implies that the corporation is unwilling or unable to conduct a suit on its own behalf. Clearly, it should first be ascertained whether the corporation is unwilling to undertake the action. Gonzalez Turul, 951 F.2d at 2 (citations omitted). Similarly, the Supreme Court of Delaware has said that substantive Delaware law (such as Aronson and Rales) applied under the Delaware equivalent to Fed. R.Civ.P. 23.1 sets a high bar for demand futility. In a recent case, the court stated twice that the requirement of particularized pleadings is a strict threshold, notwithstanding the potential underlying" }, { "docid": "14890062", "title": "", "text": "of directors.” Comment, “The Demand and Standing Requirements in Stockholder Derivative Actions,” 44 U.Chi.L.Rev. 168, 171 (1976); see also Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 450 (2d Cir.1978); Aronson v. Lewis, 473 A.2d 805, 812 (Del.Sup.Ct.1984). In a more practical vein, the demand for relief may alert the board to problems of which it was unaware, and may cause it to champion the complainant’s cause more directly, more efficiently, and/or more effectively than the shareholder could have done alone — perhaps without the need for litigation. The demand requirement also serves the goal of judicial economy, by giving the corporation a full opportunity to put its house in order before it is prematurely hauled into a court to account for its actions. See generally Principles of Corporate Governance § 7.03 (ALI Tent. Draft No. 6, 1986). No jurisdiction’s demand requirement is absolute, however. Rather, courts have recognized that there are times when insisting on demand will erect a needless barrier to valid shareholder litigation. In cases when demand would be futile, the requirement has been excused. See Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23-24 (1st Cir.1978). There is, however, disagreement about the precise scope of the futility exception to the demand requirement. The predominant federal view is that the board of directors must have been actively involved in the alleged wrongdoing for demand to be excused: only when directors’ actions demonstrate self-interest or some other form of bias will most courts find that it is presumptively unlikely that they would respond fairly to a shareholder demand for corporate action. See, e.g., In re Kauffman Mutual Fund Actions, 479 F.2d at 265; Greenspun, 634 F.2d at 1210. In this view, mere “acquiescence” in the challenged act by the board of directors is not enough to show that the board will not consider the shareholder’s petition fairly. See Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977); accord In re Consumers Power Co. Derivative Litigation, 111 F.R.D. 419, 424 (E.D.Mich.1986) (“[I]n a case where the directors have merely acquiesced or approved a transaction, even if" }, { "docid": "8884060", "title": "", "text": "“create a demand requirement of any particular dimension.” Id. Ill S.Ct. at 1716 (emphasis in original). It only speaks “to the adequacy of the shareholder representative’s pleadings.” Id. The substantive requirements of demand are a matter of state law. Id. at 1723. In a federal shareholder derivative action, a shareholder must plead with particularity either that demand was made on the corporation or that demand was futile. Fed.R.Civ.P. 23.1. This circuit vigorously enforces this requirement and will dismiss derivative actions when plaintiffs do not comply. Grossman v. Johnson, 674 F.2d 115, 125 (1st Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). In doing so, we have recognized the important policy behind the demand requirement. A shareholder derivative action is an action of last resort. See In Re Kauffman Mutual Fund Actions, 479 F.2d 257, 263 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). When shareholders undertake such an action it implies that the corporation is unwilling or unable to conduct a suit on its own behalf. Clearly, it should first be ascertained whether the corporation is unwilling to undertake the action. 479 F.2d at 263 (“[T]o be allowed, sua sponte, to place himself in charge without first affording the directors the opportunity to occupy their normal status, a stockholder must show that his case is exceptional.”). In this case Gonzalez never alleged in her complaint that she made a demand on the board of directors of Rogatol. Neither did she allege in her complaint that such demand would have been futile. Instead, as appellee, she now claims that demand would have been futile and therefore excused. This is too late. We need not consider the question of whether, under Puerto Rican law, demand would have been excused. Under Federal Rule of Civil Procedure 23.1 she was required in the complaint to allege with particularity the facts that would lead to that conclusion. Grossman, 674 F.2d at 123; In Re Kauffman, 479 F.2d at 263. Futility of demand will not be" }, { "docid": "18400300", "title": "", "text": "Municipal Bond Fund, Inc., 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). Otherwise stated, the First Circuit takes a “strict view, generally, of the requirement of prior demand”. Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir. 1978). The initial complaint here filed, that of Zucker Associates, made no reference to any demand, merely stating in conclusory terms that plaintiff believed such demand would be futile. A similar conclusory pleading was filed by the plaintiffs Botos and Silver in their complaint, and plaintiff Haber Crushed Fruit Company in turn merely tried to “piggyback” what it perceived to be a proper demand made by plaintiff Markewich in the course of his approach to these proceedings. The law is well established that the futility of a demand before suit is to be gauged as of the time the derivative action is commenced, not as of a later date when hindsight affects clarity. Grossman v. Johnson, supra, 674 F.2d at 123. And the mere fact that all of the director-defendants are named furnishes no excuse for failure to make such a demand, Heit v. Baird, supra, 567 F.2d at 1162, nor are bare allegations of “wrongful participation” or “acquiescence” sufficient to satisfy the requirement of demand. Gross-man, supra at 124. As hereinabove indicated, plaintiff Markewich is the only plaintiff who actually attempted to make a demand on the corporate directors of PSNH. His initial effort, pursuant to a letter of his counsel dated February 1, 1984, set forth in general, conclusory terms allegations of certain “improprieties” perceived to be causal of financial losses to PSNH. Complaint Exhibit A. In response thereto, the secretary of PSNH by letter of February 10, 1984, advised counsel for Markewich that the letter was on the agenda for the regular meeting of the board of PSNH scheduled for March 15, 1984. Complaint Exhibit B. In turn, plaintiffs counsel, by letter of February 17, 1984, requested the opportunity to be present at the board meeting. Complaint Exhibit C. This offer was refused by PSNH through" }, { "docid": "5273870", "title": "", "text": "In re Kauffman Mutual Fund Actions, supra, 479 F.2d at 263. Ill The final question is whether plaintiff’s post-litigation demand cured his failure to make one before beginning the action. Rule 23.1 specifically calls upon the complaint to show that demand was made or was properly excused; there is no provision for thereafter remedying an omission in the same suit, especially after the defendants have moved to dismiss because of the absence of a demand. The terms of the Rule have generally been followed by other appellate courts. Lucking v. Delano, 117 F.2d 159, 160 (6th Cir. 1941) (“Obviously the filing of the complaint cannot be regarded as a demand to sue, for by starting the action [plaintiffs] have usurped the field”); Shlensky v. Dorsey, 574 F.2d 131, 141-42 (3rd Cir. 1978) (“The contemplated showing of demand made upon the directors after the filing of the shareholders’ derivative complaints could not have satisfied the demand requirements of the rule”); Galef v. Alexander, 615 F.2d 51, 59 (2d Cir. 1980) (“Rule 23.1 * * * is essentially a requirement that a stockholder exhaust his intra-corporate remedies before bringing a derivative action”). Though this court has not yet ruled squarely on the precise point, it has observed that the role of demand is to alert the director before suit is instituted. In re Kauffman Mutual Fund Actions, supra, 479 F.2d at 263, we said that “to be allowed, sua sponte, to place himself in charge without first affording the directors the opportunity to occupy their normal status, a stockholder must show that his case is exceptional,” i.e. that demand is excused (emphasis added). The same postulate was expressed in Heit v. Baird, supra, 567 F.2d at 1162 (n.6): “The purpose of the demand requirement is, of course, to require resort to the body legally charged with conduct of the company’s affairs before licensing suit in the company’s name by persons not so charged” (emphasis added). Under this court’s practice of vigorous enforcement of the Rule (Heit v. Baird, 567 F.2d at 1160; see also In re Kauffman Mutual Fund Actions, 479 F.2d" }, { "docid": "21296183", "title": "", "text": "Sheahan, 222 F.3d 309, 318 (7th Cir.2000)(dismissal for lack of standing); Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C.Cir. 1999) (dismissal for lack of subject matter jurisdiction); Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.1999) (dismissal of forma pauperis suit as frivolous); 18A Federal Practice & Procedure § 4436. We need not belabor the abstract question of what “on the merits” means in modern issue preclusion law because we have in this Circuit clear guidance on how to treat the very situation presented here-dismissal of a derivative suit for failure to adequately plead a demand or futility of a demand. In In re Kauffman Mutual Fund Actions, 479 F.2d 257 (1st Cir.1973), we affirmed the dismissal of a derivative suit for failure to plead with particularity facts that would excuse demand on the board of directors, but we qualified the affirmance in one respect: the district court had denominated the dismissal as “without prejudice,” but we held that this characterization was not entirely correct. This must mean without prejudice as to the substantive cause of action. The dismissal is without prejudice as to the substantive cause of action. The dismissal is with prejudice on the issue of the obligation to make a demand on the directors with respect to that substantive complaint. The principle applies that “[ajlthough, where a judgment for the defendant is not on the merits, the plaintiff is not precluded from maintaining a new action on the same cause of action, he is precluded, from relitigating the very question which was litigated in the prior action.” Restatement of Judgments § 49, comment b, at 195 (1942). Id. at 267 (emphasis added). Kauffman confirms the generally accepted principle that dismissal for failure to satisfy a precondition to suit precludes relitigation of the very same issues actually decided in the first litigation. See Saez Rivera v. Nissan Mfg. Co., 788 F.2d 819, 821 (1st Cir.1986) (per curiam) (dismissal for failure to effect service of process barred second suit based on same attempt at service); see generally 18A Federal Practice & Procedure § 4437." }, { "docid": "470405", "title": "", "text": "draw an inference.’ 2 Wigmore on Evidence § 291, at 228 (Chadboum rev. 1979) (emphasis added).” Knightsbridge Marketing v. Promociones y Proyectos, 728 F.2d 572, 575 (1st Cir.1984) (quoting Nation-Wide Check Corporation, Inc. v. Forest Hills Distributors, Inc., 692 F.2d 214, 217-18 (1st Cir.1982)). In this case Dennis failed to produce the documents that could have proved or disproved the allegations in the complaint. As a result, the effect of striking his answer to the complaint was nearly identical to simply drawing an adverse inference from his failure to produce those documents. The sanction applied by the district court was, therefore, eminently appropriate. In any event, our review is limited to the search for abuse of discretion: “The question, of course, is not ... whether the Court of Appeals would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.” National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). The conduct which prompted the district court’s decision in this case seems to be well within the intended scope of Rule 37, so that we cannot find an abuse of discretion. The remaining contentions of this appeal are mainly evidentiary, challenging on factual grounds the district court's findings of damages and liability. It is true that the court did not, as it could have, enter a default judgment against the defendant but said instead that plaintiff must still set out a prima facie case. At the same time, the court properly stated that any allegations in the complaint not denied or disproved at trial were taken to be admitted. We will therefore examine both the record of the trial and the allegations in the complaint to find support for each element of the cause of action. The first shortcoming alleged by the appellant is the lack of the demand on the Board of Directors that is required before the institution of a shareholders’ derivative action. Fed.R.Civ.P. 23.1. See Heit v. Baird, 567 F.2d 1157 (1st Cir.1977); In re Kauffman Mutual Fund" }, { "docid": "8884059", "title": "", "text": "their answer, denied the allegations and moved to dismiss because Gonzalez never made demand on the corporation or alleged with particularity that demand was futile. The trial court refused to dismiss the action. The Araujos also raised Gonzalez’ failure to make demand in a motion to dismiss dated October 4, 1990, and directed verdict motions. After a jury trial, Gonzalez received a verdict for $100,000 against the Araujos jointly and severally on the shareholder derivative action. The jury, however, rejected Gonzalez’ personal damage claim against the Araujos. The Araujos again alleged, as one of several issues in a motion for judgment n.o.v., that Gonzalez never made demand on the corporation or alleged its futility with particularity. The court again denied the Araujos’ motion. II. Discussion Shareholder derivative actions in federal court are governed by Federal Rule of Civil Procedure 23.1. In the recent Supreme Court case of Kamen v. Kemper Financial Services, Inc., — U.S. -, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), the Court clarified that Federal Rule of Civil Procedure 23.1 does not “create a demand requirement of any particular dimension.” Id. Ill S.Ct. at 1716 (emphasis in original). It only speaks “to the adequacy of the shareholder representative’s pleadings.” Id. The substantive requirements of demand are a matter of state law. Id. at 1723. In a federal shareholder derivative action, a shareholder must plead with particularity either that demand was made on the corporation or that demand was futile. Fed.R.Civ.P. 23.1. This circuit vigorously enforces this requirement and will dismiss derivative actions when plaintiffs do not comply. Grossman v. Johnson, 674 F.2d 115, 125 (1st Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). In doing so, we have recognized the important policy behind the demand requirement. A shareholder derivative action is an action of last resort. See In Re Kauffman Mutual Fund Actions, 479 F.2d 257, 263 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). When shareholders undertake such an action it implies that the corporation is" }, { "docid": "18400299", "title": "", "text": "rate base hearing before PUC, and as the Court finds that continuation of the action will not necessarily interfere with the other class actions, the alternative remedy of stay is not available. Of considerably more merit is the second argument of the defendants in the derivative action cases to the effect that the complaints fail to “allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors ... and the reasons for his failure to obtain the action or for not making the effort.” Rule 23.1, supra. Described as “not an ordinary, but an exceptional rule of pleading, serving a special purpose, and requiring a different judicial approach”, In re Kauffman Mutual Fund Actions, 479 F.2d 257, 263 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973), the prelitigation demand on corporate directors mandated by Rule 23.1, supra, is vigorously enforced in the First Circuit. Grossman v. Johnson, 674 F.2d 115, 125 (1st Cir.), cert. denied sub nom. Grossman v. Fidelity Municipal Bond Fund, Inc., 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Heit v. Baird, 567 F.2d 1157, 1160 (1st Cir.1977). Otherwise stated, the First Circuit takes a “strict view, generally, of the requirement of prior demand”. Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir. 1978). The initial complaint here filed, that of Zucker Associates, made no reference to any demand, merely stating in conclusory terms that plaintiff believed such demand would be futile. A similar conclusory pleading was filed by the plaintiffs Botos and Silver in their complaint, and plaintiff Haber Crushed Fruit Company in turn merely tried to “piggyback” what it perceived to be a proper demand made by plaintiff Markewich in the course of his approach to these proceedings. The law is well established that the futility of a demand before suit is to be gauged as of the time the derivative action is commenced, not as of a later date when hindsight affects clarity. Grossman v. Johnson, supra, 674 F.2d at 123. And the mere" }, { "docid": "14890078", "title": "", "text": "not particu larly daunting in the first place. Gaubert has made it clear that he had serious differences with IASA’s final board. But without a particularized showing that the individual members of this board, who continued to operate under fiduciary duties of fidelity to IASA’s best interests, could not or would not have granted an impartial hearing to Gaubert’s demand for action, the district court was within its authority under Federal Rule 23.1 to dismiss his complaint. Affirmed. . Our analysis of Gaubert's complaint under Rule 23.1 is based on the adequacy of the complaint itself. See Heit v. Baird, 567 F.2d 1157, 1159 n. 3 (1st Cir.1977). . As a conceptual matter, this inquiry can be separated from the procedural issue of pleading with particularity, which was the actual basis on which the district court dismissed Gaubert’s complaint. But in practice the substantive contours of the demand requirement inform the procedural inquiry. In particular, Gaubert argues that the applicable demand requirement would be excused in Texas upon a showing of board acquiescence in the challenged action. If that substantive standard were found to be the proper one, then the range of facts that Mr. Gaubert would have to plead would be considerably narrower than under a more stringent substantive standard. . In a requirement that is now embodied in Rule 23.1, the Court further ruled that “[t]he efforts to induce such action ... and the cause of failure in these efforts, should be stated with particularity_” Id. at 461. . The Supreme Court has so far declined to decide this issue. See Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 532 n. 8, 104 S.Ct. 831, 836 n. 8, 78 L.Ed.2d 645 (1984). In a separate concurrence in Daily Income Fund, Justice Stevens outlined his reasons for concluding that Rule 23.1 could not provide the substantive basis for the demand requirement: The rule that sometimes requires a shareholder to make an appropriate demand before commencing a derivative action has its source in the law that gives rise to the derivative action itself. Rule 23.1 ... merely requires that" }, { "docid": "23369151", "title": "", "text": "circuits that it does not. See Grossman v. Johnson, 674 F.2d 115, 124 (1st Cir.), cert. denied, — U.S. —, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Lewis v. Curtis, 671 F.2d 779, 785 (3d Cir.), cert. denied, — U.S. —, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982); Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1210 (9th Cir.1980); In re Kauffman Mutual Fund Actions, 479 F.2d 257, 265 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). But see Liboff v. Wolfson, 437 F.2d 121, 122 (5th Cir.1971) (per curiam). The fact that a corporation’s directors have previously approved transactions subsequently challenged in a derivative suit does not inevitably lead to the conclusion that those directors, bound by their fiduciary obligations to the corporation, will refuse to take up the suit. This is particularly true where the directors’ prior acquiescence was obtained through fraud or where the dealings in question otherwise went sour for the corporation. Moreover, Rule 23.1 would be substantially diluted if prior board approval standing alone established futility. Derivative suits are almost invariably directed at major, allegedly illegal, corporate transactions. By virtue of their offices, directors ordinarily participate in the decision making involved in such transactions. See The Demand and Standing Requirements, supra, at 179. Excusing demand on the mere basis of prior board acquiescence, therefore, would obviate the need for demand in practically every case. We do not consider ourselves bound by dicta in our decision in Abramowitz, 672 F.2d at 1033, which appellant would have us rely on for the proposition that demand is automatically excused if all directors are named as defendants. The single fact that the plaintiff named as defendants more than a majority — in this case all — of McDermott’s then serving directors in our view falls short of excusing demand. See Lewis, 671 F.2d at 785; Heit v. Baird, 567 F.2d 1157, 1162 (1st Cir.1977); Brooks v. American Export Industries, Inc., 68 F.R.D. 506, 511 (S.D.N.Y.1975); cf. Galef v. Alexander, 615 F.2d 51, 59-60 (2d Cir.1980) (discussing with apparent approval rationale of cases" }, { "docid": "22439943", "title": "", "text": "this amended complaint fails to allege with particularity reasons why demand was not necessary. Whether Lewis has complied with the demand requirement of rule 23.1 involves solely an examination of the amended complaint. See In re Kauffman Mutual Fund Actions, 479 F.2d 257, 263 & n.4 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). Courts will excuse the derivative plaintiff from the demand requirement when his complaint alleges that a majority of the directors have participated in the underlying wrongdoing or that the board is controlled by the alleged wrongdoers. See Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir. 1978); Cathedral Estates v. Taft Realty Corp., 228 F.2d 85, 88 (2d Cir. 1953). To preserve the vitality of rule 23.1, however, courts have refused to excuse demand simply because a majority of the directors are named in the complaint and have cautioned that mere conclusory allegations of director wrongdoing will not suffice to excuse demand. See Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1209-10 (9th Cir. 1980); Heit v. Baird, 567 F.2d 1157, 1162 (1st Cir. 1977); Kauffman, 479 F.2d at 264. Courts disagree about the level of the directors’ involvement in the challenged transaction necessary to excuse demand. The majority view is that the mere approval of an allegedly injurious corporate transaction, absent self-interest or bias by a majority of the board, is insufficient to excuse demand. See Greenspun, 634 F.2d at 1210; Heit, 567 F.2d at 1162; Kauffman, 479 F.2d at 265. But see Liboff v. Wolfson, 437 F.2d 121, 122 (5th Cir. 1971) (per curiam). See generally Note, The Demand and Standing Requirements in Stockholder Derivative Actions, 44 U. Chi.L.Rev. 168, 176-77 (1976) (Kauffman represents the preferred view). Moreover, the cases are in agreement that the allegation that demand upon the directors would be futile because the directors “would be suing themselves” is not alone sufficient to excuse demand. See Heit, 567 F.2d at 1162; Weiss v. Temporary Investment Fund, Inc., 516 F.Supp. 665, 672-73 (D.Del.1981); Kusner v. First Pennsylvania Corp., 395 F.Supp. 276, 284-85" }, { "docid": "470406", "title": "", "text": "court’s decision in this case seems to be well within the intended scope of Rule 37, so that we cannot find an abuse of discretion. The remaining contentions of this appeal are mainly evidentiary, challenging on factual grounds the district court's findings of damages and liability. It is true that the court did not, as it could have, enter a default judgment against the defendant but said instead that plaintiff must still set out a prima facie case. At the same time, the court properly stated that any allegations in the complaint not denied or disproved at trial were taken to be admitted. We will therefore examine both the record of the trial and the allegations in the complaint to find support for each element of the cause of action. The first shortcoming alleged by the appellant is the lack of the demand on the Board of Directors that is required before the institution of a shareholders’ derivative action. Fed.R.Civ.P. 23.1. See Heit v. Baird, 567 F.2d 1157 (1st Cir.1977); In re Kauffman Mutual Fund Actions, 479 F.2d 257 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). Far from being a “rote and conclu-sory allegation,” as appellant contends, plaintiff's explanation for her failure to demand that the Board of Directors take the desired action, is legally sufficient and fully supported by the facts. The complaint states: 16. No formal demand was made upon Dennis and CMC to bring this action because such a demand would be futile, pointless, an idle ceremony, and even absurd because at all relevant times mentioned herein: (a) Dennis was the chief executive officer and he and his wife constituted the entire board of directors of CMC [Conda-do Mini-Cinema] (although illegally constituted under the General Corporation Laws of Puerto Rico); Dennis was thus in control of CMC and ran it and the other defendants as a single family business and his alter ego. (b) Dennis, his wife and children were the majority stockholders of CMC (and the sole stockholders of the other defendant corporations) and without their consent and direction" }, { "docid": "21296189", "title": "", "text": "plaintiffs failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.”). We acted consistently with this principle in Gonzalez Turul v. Rogatol Distributors, Inc., 951 F.2d 1 (1st Cir.1991). There, we reversed a judgment after trial in a derivative suit because the plaintiff had not alleged in the complaint either that she had made demand on the directors' or that demand would have been futile, id. at 1; however, we dismissed the complaint “without prejudice,” id. at 3, with the implication that suit could be refiled if the plaintiff complied with Rule 23.1. Thus, the parties’ respective rights may have altered over the course of time between the two suits, which may make preclusion inappropriate. See DeCosta v. Viacom Int’l, Inc., 981 F.2d 602, 610-11 (1st Cir.1992). We therefore conclude that dismissal for failure to plead demand under Rule 23.1 is not entirely analogous to dismissal for failure to state a claim. We do not believe that applying claim preclusion to a dismissal for failure to plead satisfaction of a precondition to suit is compatible with the principle of Costello or the holdings in cases like Le-Brón-Ríos that failures to satisfy preconditions generally can be cured. The defendants contend that the dismissal was on the merits in the sense of reaching a substantive issue, citing Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 96-97, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), which stated that the demand requirement is substantive, not procedural. The preclusive effect of a dismissal for failure to comply with a precondition to suit does not depend on whether the precondition is “substantive” or “procedural,” but on whether the plaintiff has satisfied the precondition between the dismissal of the first suit and the filing of the second. See 18A Federal Practice & Procedure § 4437, at 184-85 (“Dismissal for failure to satisfy a procedural precondition should be treated in the same way as dismissal for failure to satisfy" } ]

[ { "docid": "8564121", "title": "", "text": "S.W.2d 764 (Tex.1964). Damages against one joint tortfeasor must be reduced by one-half when there has been a settlement on the part of the other joint tortfeasor. This holding is followed in our Circuit: Under Texas law if the pilot was a joint tortfeasor the settlement with his estate by the plaintiffs entitled the government to a reduction of the judgment against it by one-half. Gill v. United States, 429 F.2d 1072, 1078 (5th Cir. 1970). A final point asserted by the Government may find- this opinion deciding a point of first impression in this Circuit. The Federal Tort Claims Act in pertinent part provides: Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim 28 U.S.C.A. § 2675(b). The administrative claim filed with the government agency was for $2,300,000. The complaint alleged a claim for $2,300,000. The judge assessed damages at $2,500,000. He then entered judgment for one-half that amount, $1,250,000, against the Government. Although the plaintiffs might well be limited to a $2,300,-000 judgment against the Government, the $1,250,000 judgment is within that amount. We think the statute does not prevent proof of damages in excess of the amount of the administrative claim, but only prevents assertion of a claim and judgment against the Government in excess of that amount. The amount of judgment against the Government being less than the amount of the administrative claim, we find no error in what was done here. Presumably the court could have found damages in the amount of $4,600,000 and by limiting the judgment to one-half of that sum, allowed recovery against the Government for an amount within the administrative claim. AFFIRMED." } ]

[ { "docid": "5540814", "title": "", "text": "by the legislative history of the 1966 amendment, was to improve and expedite disposition of monetary claims against the Government by establishing a system for prelitigation settlement, to enáble consideration of claims by the agency having the best information concerning the incident, and to ease court congestion and avoid unnecessary litigation. S.Rep. 1327, 89th Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1966, p. 2515. 435 F.2d at 1222-23. The question of whether allowing class actions would hinder the realization of these goals is not easily resolved. As regards the requirement that a claim be stated in a sum certain, it is clear that the regulation represents a reasonable attempt to expedite prelitigation settlement. As the court noted in Caton v. United States, 495 F.2d 635 (9th Cir. 1974): Thus after the 1966 amendment “an amount certain” in the claim was not needed to identify the claim as one subject to administrative settlement by the agency, except that the prior written approval of the Attorney General or his designee was required when the claim exceeded $25,000. There still remained the need for a claim to state “a sum certain” to identify the claim which might require Attorney General approval and to identify the claim which, if settled for $25,000 or less, would be paid out of available appropriations. Secondly, such identification was needed in connection with insurance coverage that might exist ... for the governmental agency activity. Finally, the requirement of the inclusion of “a sum certain” in the claim must be read with the language of 28 U.S.C. section 2675(b): “Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.” (Emphasis added). It is apparent that without the inclusion of “a sum certain” in the claim to the agency, the above provisions of 28 U.S.C. section" }, { "docid": "14834713", "title": "", "text": "is the amount that a plaintiff seeks to recover from the government. Unless the “newly discovered evidence” or the “intervening facts” exception in 28 U.S.C. § 2675(b) is applicable, a plaintiff may not recover any sum in excess of the amount of the claim presented to the appropriate federal agency in conformance with 28 U.S.C. § 2675(a). A plaintiff will be free at trial to present proof of damages exceeding this amount; if he does so and if comparative fault principles are applicable under the relevant substantive law, the plaintiff should recover either his pro rata share of his proven damages or the amount of his administrative claim, whichever is less. In the case at bar, Martinez filed an administrative claim for $2 million, proved damages of $4,496,128.34 at trial, and was found to be 35% at fault for the accident, $4,496,128.34 reduced by 35% is $2,922,-483.42, which is more than the administrative claim. We therefore modify the judgment to provide that Martinez be awarded $2 million. AFFIRMED AS MODIFIED. . The legislative history of the FTCA, which does not speak directly to the question at issue here, is compatible with either reading of the \"shall not be instituted\" language in § 2675(b). In summarizing what is now § 2675(b), the House Committee on the Judiciary said: \"Suit may not be instituted upon a claim presented to an agency until it has been finally disposed of by the agency____ In any case, the suit cannot be brought for more than the amount of the claim presented to the agency, in the absence of intervening facts or newly discovered evidence.\" H.R.Rep. No. 1287, 79th Cong., 1st Sess. 5 (1945) (emphasis added). When the FTCA was amended in 1966 to expand the authority of federal agencies to settle tort claims without litigation, the \"shall not be instituted” language in § 2675(b) was retained without comment. See S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 2515-27. . In Dickens v. United States, 545 F.2d 886, 893 (5th Cir.1977), we said that the FTCA \"does not prevent proof" }, { "docid": "14834706", "title": "", "text": "reject Martinez’s argument. We note first that the district court correctly and expressly looked to Texas law, which has at all relevant times held that inflation is properly considered in the calculation of tort damages. Texas law was not affected by Culver, just as it had not been affected by Penrod Drilling. It is true that Standefer, and a dictum in Ferrero v. United States, 603 F.2d 510, 514 (5th Cir.1979), could have caused some confusion in this circuit about the use of inflationary factors when calculating damages in Texas FTCA cases. There was, however, no change at all in Texas law during the critical period between the filing of the administrative claim and the amendment at issue here. In any event, the plaintiff presented no evidence indicating that his attorney relied on Standefer or Ferrero when filing the administrative claim. There has accordingly been no “allegation and proof of intervening facts, relating to the amount of the claim. ” 28 U.S.C. § 2675(b) (emphasis added). We conclude that the district court erred in allowing Martinez to amend his claim. IV Although Martinez’s ad damnum clause should have been limited to $2 million, the amount of his administrative claim, he was allowed to prove damages of $4,496,128.34. The district court reduced this to $2,922,-483.42 to reflect the plaintiff’s 35% comparative negligence. We must decide whether the judgment should be reduced to $2 million (the amount claimed in the administrative proceeding) or to $1.3 million (65% of $2 million). So far as we are aware, this question has never been squarely faced in any reported decision. The FTCA provides, with two exceptions not applicable here, that a tort action against the United States “shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency.” 28 U.S.C. § 2675(b) (emphasis added). This provision will ordinarily operate to deny recovery of an amount in excess of the claim presented to the administrative agency. In a case like the one at bar, however, this simple result does not necessarily follow. Had the plaintiff been denied" }, { "docid": "7115249", "title": "", "text": "the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment.”). No suit may be filed under the FTCA, however, unless the claimant has made a timely application to the agency involved for administrative settlement and the claim has been denied or not acted upon for 6 months. 28 U.S.C. § 2675; see also 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The purpose of this administrative claim procedure is to allow the agency to consider possible settlement “without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No. 1327, 89th Cong., 2d Sess. 3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2515, 2517. In McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), the United States Supreme Court held that prior filing of an administrative claim is a jurisdictional prerequisite for any judicial proceeding. Id. at 110-12, 113 S.Ct. 1980 (holding that full exhaustion of the administrative remedy is necessary before a lawsuit can be initiated). Accordingly, the Government created Standard Form 95 for this purpose, though an administrative claim does not need to be submitted on a special form, as long as the agency receives timely and reasonable notice of a claim of tortious wrongdoing. Williams v. United States, 693 F.2d 555, 557 (5th Cir.1982) (“[W]e have held that no particular form or manner of giving such notice is required as long as the agency is somehow informed of the fact of and amount of the claim within the two year period ... neither a Form 95 nor any other particular form of claim is required[.]”). In" }, { "docid": "8854225", "title": "", "text": "inconsistent with the legislative intent behind the FTCA. A civil action is not commenced until a party files a complaint with the clerk of court. Fed.R.Civ.P. 3. Yet, under the FTCA a claimant must file an administrative claim with the appropriate federal agency as a jurisdictional prerequisite to filing an action in federal court. Garrett, 640 F.2d at 26. The purpose of the FTCA’s limitations statute “is to require the reasonably diligent presentation of tort claims against the Government.” Kubrick, 444 U.S. at 123, 100 S.Ct. 352. In McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), the Supreme Court explained: Prior to 1966, FTCA claimants had the option of filing suit in federal court without first presenting their claims to the appropriate federal agency. Moreover, federal agencies had only limited authority to settle claims. See Federal Tort Claims Act of 1946, ch. 753, §§ 403(a), 420, 60 Stat. 843, 845. Because the vast majority of claims ultimately were settled before trial, the Department of Justice proposed that Congress amend the FTCA to “requir[e] all claims to be presented to the appropriate agency for consideration and possible settlement before a court action could be instituted. This procedure would make it possible for the claim first to be considered by the agency whose employee’s activity allegedly caused the damage. That agency would have the best information concerning the activity which gave rise to the claim. Since it is the one directly concerned, it can be expected that claims which are found to be meritorious can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No. 1327, 89th Cong., 2d Sess., 3 (1966), U.S.Code Cong. & Admin. News 1966, pp. 2515, 2517. Id. at 112 n. 7, 113 S.Ct. 1980. Section 2401(b) specifically states that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of" }, { "docid": "14834715", "title": "", "text": "of damages in excess of the amount of the administrative claim” and that \"[t]he amount of judgment against the Government being less than the amount of the administrative claim, we find no error in what was done here.\" In Dickens, the plaintiff had filed an administrative claim for $2.3 million and an action in federal court for the same amount. Actual damages of $2.5 million were proved at trial and judgment was entered for $1.25 million. The reduction to $1.25 million was required by the applicable substantive law, which held that when a plaintiff has settled with one of two joint tortfeasors, the release has \"at least discharged one-half [the] damages” and that such a plaintiff can therefore not recover more than one-half the actual damages from the other tortfeasor. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 766 (Tex.1964) (quoting Gattegno v. The Parisian, 53 S.W.2d 1005, 1008 (Tex.Comm’n App.1932, holding approved)); Palestine Contractors, 386 S.W.2d at 773 (expressly endorsing the Gattegno formulation). In Dickens, therefore, proof of actual damages was relevant to the determination of the amount of damages that had been \"discharged\" by the release of the settling tortfeasor. As we pointed out, § 2675(b) \"prevents assertion of a claim and judgment against the Government in excess of [the amount of the administrative claim].” 545 F.2d at 893 (emphasis added). Because Dickens' complaint alleged the same damages as the administrative claim and because the Texas joint-tortfeasor rule had automatic effects known to all parties in advance, we did not focus on the notice issue that is present in the case at bar and discussed infra." }, { "docid": "2599811", "title": "", "text": "and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.\" S.Rep.No. 1327, 89th Cong., 2d Sess. 1-3 (1966) reprinted in 1966 U.S.Code Cong. & Admin.News 2515, 2516. . Section 2675(b) provides that: Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts relating to the amount of the claim. . The Government would certainly have been entitled to insist, so as to avoid future misunderstanding, that plaintiff promptly amend its administrative claim retroactively so as to delete the offensive language. Had the Government sought such an amendment, and had plaintiff refused, we would view the case quite differently. See Swift v. United States, 614 F.2d 812 (1st Cir.1980). . The Government suggests that the holding in Keene Corp. v. United States, 700 F.2d 836 (2d Cir.) cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), is more representative of the Second Circuit’s position because the outcome in Adams by Adams was fact specific and driven by what the judges thought would be the most equitable result. In Keene, the Second Circuit rejected plaintiffs claim for damages of \"$1,088,135 and an additional amount yet to be ascertained” as too indefinite to satisfy the sum certain requirement. Keene, 700 F.2d at 841. We disagree with the Government’s characterization of both these decisions. First, there is nothing in Adams by Adams that indicates, as the Government contends, that the court ignored the qualifying language only because the harm to the Government and to the plaintiff of so doing was de minimis. Second, the Adams by Adams court distinguished Keene, stating that the Court did not disregard the qualifying language in that case “because the Keene claim had an additional defect____” Adams by Adams, 807 F.2d at 321. The court" }, { "docid": "14834708", "title": "", "text": "leave to amend his ad damnum clause upwards and had his proof of damages been limited to $2 million, his recovery would in turn have been limited to 65% of the $2 million damages he alleged and proved. If it was proper, however, to allow the plaintiff to prove his full actual damages, one could argue that he should be allowed to recover 65% of those damages or $2 million, whichever was less. We must therefore decide whether the phrase “shall not be instituted” in § 2675(b) merely precludes a recovery exceeding the amount of the administrative claim, or whether it also precludes a plaintiff from using proof of greater damages to “offset” the effects of a finding that his recovery should be reduced to reflect his own partial fault. Our effort to decide between these approaches is made difficult by the fact that comparative fault principles were not generally employed when the FTCA was enacted in 1946: Congress almost certainly did not contemplate the dilemma that confronts us here today. Furthermore, comparative fault doctrine has developed during an era in which pleadings are routinely amended to conform to the evidence presented. See, e.g., Fed.R.Civ.P. 15(b). Consequently, cases dealing with problems analogous to the one presented here are necessarily rare, if they exist at all. We are required, then, to write on what is almost a clean slate and to decide the issue in accord with the statute’s language, its purposes, and generally applicable principles of interpretation. Standing ' alone, the language of § 2675(b), which precludes an action from being “instituted” for a sum greater than that sought in the mandatory administrative claim, could be read either to preclude recovery of a greater sum or to forbid using proof of a greater sum to enhance the recovery beyond what would be available in the absence of that proof. The manifest purpose of the sum certain requirements of § 2675 is to ensure that federal agencies charged with making an initial attempt to settle tort claims against the United States are given full notice of the government’s potential liability. See" }, { "docid": "13417261", "title": "", "text": "claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency ....” Section 2672 authorized the Attorney General to prescribe regulations applicable to the consideration and settlement of tort claims against the United States prior to suits being filed in federal court. A claimant now has to satisfy an “administrative claim” requirement before the federal courts have jurisdiction to entertain a suit based on the claim. Congress had three specific purposes in passing the 1966 amendments to the FTCA. It wished to reduce the burden placed on the federal courts by facilitating the settlement of claims at the administrative level, decrease the cost of processing claims at both the administrative and judicial levels, and promote fair and equitable treatment of claimants. See H.Rep. No. 1532, supra, at 6; S.Rep. No. 1327, 89th Cong., 2d Sess. 11, reprinted in 1966 U.S.Code Cong. & Ad. News 2515, 2524 (statement of Nicholas deB. Katzenbach, Attorney General). See generally Note, Claim Requirements of the Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, 81 Mich.L. Rev. 1641 (1983) (discussing the legislative history of the 1966 FTCA amendments). II. THE MAJORITY OPINION The majority only considers the goal of fair and equitable treatment of claimants. It ignores the other goals. It relies on three arguments to support its neglect. None are persuasive. First, the majority argues that the language of section 2672 does not suggest that Congress intended to apply the Attorney General’s regulations jurisdictionally. This argument assumes that the claims settlement process and the administrative claim requirement are unrelated. This assumption ignores the fact that the administrative claim requirement serves to facilitate the settlement process which, in turn, serves the three purposes intended to be furthered by the 1966 amendments. See S.Rep. No. 1327, supra, at 3, reprinted in 1966 U.S.Code Cong. & Ad.News at 2517. No one doubts that a claimant must make a “proper” claim presentation under section 2675 for federal jurisdiction to exist. Congress, however, chose not to set forth specific requirements. Instead, it delegated authority to process and settle tort claims" }, { "docid": "14834707", "title": "", "text": "Martinez to amend his claim. IV Although Martinez’s ad damnum clause should have been limited to $2 million, the amount of his administrative claim, he was allowed to prove damages of $4,496,128.34. The district court reduced this to $2,922,-483.42 to reflect the plaintiff’s 35% comparative negligence. We must decide whether the judgment should be reduced to $2 million (the amount claimed in the administrative proceeding) or to $1.3 million (65% of $2 million). So far as we are aware, this question has never been squarely faced in any reported decision. The FTCA provides, with two exceptions not applicable here, that a tort action against the United States “shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency.” 28 U.S.C. § 2675(b) (emphasis added). This provision will ordinarily operate to deny recovery of an amount in excess of the claim presented to the administrative agency. In a case like the one at bar, however, this simple result does not necessarily follow. Had the plaintiff been denied leave to amend his ad damnum clause upwards and had his proof of damages been limited to $2 million, his recovery would in turn have been limited to 65% of the $2 million damages he alleged and proved. If it was proper, however, to allow the plaintiff to prove his full actual damages, one could argue that he should be allowed to recover 65% of those damages or $2 million, whichever was less. We must therefore decide whether the phrase “shall not be instituted” in § 2675(b) merely precludes a recovery exceeding the amount of the administrative claim, or whether it also precludes a plaintiff from using proof of greater damages to “offset” the effects of a finding that his recovery should be reduced to reflect his own partial fault. Our effort to decide between these approaches is made difficult by the fact that comparative fault principles were not generally employed when the FTCA was enacted in 1946: Congress almost certainly did not contemplate the dilemma that confronts us here today. Furthermore, comparative fault doctrine" }, { "docid": "17379678", "title": "", "text": "creating an absolute requirement of administrative exhaustion were “intended to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 2515, 2516. Congress concluded that federal agencies should be empowered to settle the claims against them because the agencies have the best information concerning the events which gave rise to the claims. Id. at 2517 & 2519. A conclusion that the administrative exhaustion requirement of section 2675(a) does not apply to counterclaims brought pursuant to 11 U.S.C. § 106(a) would repeal the operation of the FTCA’s well-established exhaustion requirement in the bankruptcy context. Because repeals by implication are not favored by courts, Morton, 417 U.S. at 551, 94 S.Ct. at 2483, we have examined the legislative history of section 106(a) for some affirmative indication that Congress intended to exempt actions brought under this provision from the FTCA’s exhaustion requirement. We have found such an indication in the relevant portion of the legislative history of the Bankruptcy Reform Act of 1978: Section 106 provides for a limited waiver of sovereign immunity in bankruptcy cases. Though Congress has the power to waive sovereign immunity for the Federal government completely in bankruptcy cases, the policy followed here is designed to achieve approximately the same result that would prevail outside of bankruptcy. >}: * sfc ‡ 1< ‡ There is, however, a limited change from the result that would prevail in the absence of bankruptcy____ [T]he filing of a proof of claim against the estate by a governmental unit is a waiver by that governmental unit of sovereign immunity with respect to compulsory counterclaims, as defined in the Federal Rules of Civil Procedure. The governmental unit cannot receive a distribution from the estate without subjecting itself to any liability it has to the estate within the confines of a compulsory counterclaim rule. Any other result would be one-sided. S.Rep. No. 989, 95th Cong., 2d Sess. 29, reprinted in 1978 U.S.Code Cong. & Admin.News" }, { "docid": "8854226", "title": "", "text": "the FTCA to “requir[e] all claims to be presented to the appropriate agency for consideration and possible settlement before a court action could be instituted. This procedure would make it possible for the claim first to be considered by the agency whose employee’s activity allegedly caused the damage. That agency would have the best information concerning the activity which gave rise to the claim. Since it is the one directly concerned, it can be expected that claims which are found to be meritorious can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No. 1327, 89th Cong., 2d Sess., 3 (1966), U.S.Code Cong. & Admin. News 1966, pp. 2515, 2517. Id. at 112 n. 7, 113 S.Ct. 1980. Section 2401(b) specifically states that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the claim.... ” Thus, a claimant must meet both deadlines before filing a claim in federal court. Ellison v. United States, 531 F.3d 359, 362 (6th Cir.2008) (“[A] claimant cannot receive a notice of denial-the trigger for the six-month limitations rule-until she has filed an administrative claim. The statute thus plainly contemplates that one act (the administrative filing) will precede the other (court filing) and thus most naturally requires claimants to satisfy both deadlines.”). Here, Plaintiffs did not receive a denial letter until after they filed their federal action. To be sure, Plaintiffs were allowed, under 28 U.S.C. § 2675(a), to file their action in federal court after the agency failed to make final disposition of their claims within six months after the claims were filed. Yet, Plaintiffs were not required to do so. Section 2675(a) only provides that, at the claimants’ “option,” claimants may deem their claim denied by the agency’s failure to issue a denial letter within six months of filing their claim with the agency. Moreover, the" }, { "docid": "14834714", "title": "", "text": "the FTCA, which does not speak directly to the question at issue here, is compatible with either reading of the \"shall not be instituted\" language in § 2675(b). In summarizing what is now § 2675(b), the House Committee on the Judiciary said: \"Suit may not be instituted upon a claim presented to an agency until it has been finally disposed of by the agency____ In any case, the suit cannot be brought for more than the amount of the claim presented to the agency, in the absence of intervening facts or newly discovered evidence.\" H.R.Rep. No. 1287, 79th Cong., 1st Sess. 5 (1945) (emphasis added). When the FTCA was amended in 1966 to expand the authority of federal agencies to settle tort claims without litigation, the \"shall not be instituted” language in § 2675(b) was retained without comment. See S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 2515-27. . In Dickens v. United States, 545 F.2d 886, 893 (5th Cir.1977), we said that the FTCA \"does not prevent proof of damages in excess of the amount of the administrative claim” and that \"[t]he amount of judgment against the Government being less than the amount of the administrative claim, we find no error in what was done here.\" In Dickens, the plaintiff had filed an administrative claim for $2.3 million and an action in federal court for the same amount. Actual damages of $2.5 million were proved at trial and judgment was entered for $1.25 million. The reduction to $1.25 million was required by the applicable substantive law, which held that when a plaintiff has settled with one of two joint tortfeasors, the release has \"at least discharged one-half [the] damages” and that such a plaintiff can therefore not recover more than one-half the actual damages from the other tortfeasor. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 766 (Tex.1964) (quoting Gattegno v. The Parisian, 53 S.W.2d 1005, 1008 (Tex.Comm’n App.1932, holding approved)); Palestine Contractors, 386 S.W.2d at 773 (expressly endorsing the Gattegno formulation). In Dickens, therefore, proof of actual damages was relevant to" }, { "docid": "14834712", "title": "", "text": "courts should not “assume the authority to narrow the waiver that Congress intended.” Kubrick, 444 U.S. at 118, 100 S.Ct. at 357 (citation omitted). Because Congress apparently never considered the question at hand, we must recur to the more general purposes of the settlement procedures in the FTCA: “to ease court congestion and avoid unnecessary litigation” and to provide “fair and equitable treatment of private individuals and claimants.” S.Rep. No. 1327, 89th Cong., 2d Sess. 5-6 (quoting H.R.Rep. No. 1532, 89th Cong., 2d Sess.), reprinted in 1966 U.S.Code Cong. & Ad.News 2515-16. The FTCA already treats plaintiffs rather sternly by limiting their recovery to the amount of the administrative claim even when they can prove damages in excess of that amount. We do not believe that either the efficiency or the fairness of the settlement process would be enhanced by creating a rule imposing even harsher sanctions on some plaintiffs who inadvertently underestimate their damages when they file their administrative claim. Accordingly, we conclude that an FTCA “claim,” see 28 U.S.C. §§ 1346(b), 2674, 2675(a), is the amount that a plaintiff seeks to recover from the government. Unless the “newly discovered evidence” or the “intervening facts” exception in 28 U.S.C. § 2675(b) is applicable, a plaintiff may not recover any sum in excess of the amount of the claim presented to the appropriate federal agency in conformance with 28 U.S.C. § 2675(a). A plaintiff will be free at trial to present proof of damages exceeding this amount; if he does so and if comparative fault principles are applicable under the relevant substantive law, the plaintiff should recover either his pro rata share of his proven damages or the amount of his administrative claim, whichever is less. In the case at bar, Martinez filed an administrative claim for $2 million, proved damages of $4,496,128.34 at trial, and was found to be 35% at fault for the accident, $4,496,128.34 reduced by 35% is $2,922,-483.42, which is more than the administrative claim. We therefore modify the judgment to provide that Martinez be awarded $2 million. AFFIRMED AS MODIFIED. . The legislative history of" }, { "docid": "2599810", "title": "", "text": "purposes of this section. . 28 U.S.C. § 2401(b) provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented. .28 C.F.R. § 14.2(a) provides in pertinent part: For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident____ . The Senate Report to the 1966 Amendments to the FTCA, which added Section 2675, state that \"the revised procedure was intended to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.\" S.Rep.No. 1327, 89th Cong., 2d Sess. 1-3 (1966) reprinted in 1966 U.S.Code Cong. & Admin.News 2515, 2516. . Section 2675(b) provides that: Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts relating to the amount of the claim. . The Government would certainly have been entitled to insist, so as to avoid future misunderstanding, that plaintiff promptly amend its administrative claim retroactively so as to delete the offensive language. Had the Government sought such an amendment, and had plaintiff refused, we would view the case quite differently. See Swift v. United States, 614 F.2d 812 (1st Cir.1980). . The Government suggests that the" }, { "docid": "14834711", "title": "", "text": "initially underestimates the extent of his own damages. We are acutely aware of the settled general principle that statutes partially waiving sovereign immunity must be strictly construed in favor of the sovereign and that they must not be enlarged beyond what the language requires. See, e.g., Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951); Eastern Trans. Co. v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472 (1927). The Supreme Court has specifically reminded us that the FTCA is a partial waiver of sovereign immunity and that courts should not take it upon themselves to extend that waiver beyond the intention of Congress. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979); accord Childers v. United States, 442 F.2d 1299, 1303 (5th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971). The Supreme Court has also emphasized, however, that courts should not “assume the authority to narrow the waiver that Congress intended.” Kubrick, 444 U.S. at 118, 100 S.Ct. at 357 (citation omitted). Because Congress apparently never considered the question at hand, we must recur to the more general purposes of the settlement procedures in the FTCA: “to ease court congestion and avoid unnecessary litigation” and to provide “fair and equitable treatment of private individuals and claimants.” S.Rep. No. 1327, 89th Cong., 2d Sess. 5-6 (quoting H.R.Rep. No. 1532, 89th Cong., 2d Sess.), reprinted in 1966 U.S.Code Cong. & Ad.News 2515-16. The FTCA already treats plaintiffs rather sternly by limiting their recovery to the amount of the administrative claim even when they can prove damages in excess of that amount. We do not believe that either the efficiency or the fairness of the settlement process would be enhanced by creating a rule imposing even harsher sanctions on some plaintiffs who inadvertently underestimate their damages when they file their administrative claim. Accordingly, we conclude that an FTCA “claim,” see 28 U.S.C. §§ 1346(b), 2674, 2675(a)," }, { "docid": "13417260", "title": "", "text": "the sovereign immunity of the United States from private tort actions, and, with various exceptions, to equalize government tort liability with that of private individuals in similar circumstances. See S.Rep. No. 1400, 79th Cong., 2d Sess. 30 (1946). Under the 1946 FTCA, government agencies had no authority to settle tort claims over $2,500. See 28 U.S.C. § 2672 (1964), amended by 28 U.S.C. § 2672 (Supp. II 1965-66); H.Rep. No. 1532, 89th Cong., 2d Sess. 6 (1966). Thus, most injured parties had to file suit in federal court to recover. For claims under $2,500, individuals were given a choice to go either to court or to the agency. In most cases, the Attorney General would initiate settlement negotiations between the injured party and the agency only after the suit was filed. Both the government and claimants incurred significant expenses and time delays for a procedure (filing a suit) that did not aid settlement. In 1966 Congress amended the FTCA to revise this procedure. Section 2675(a) provided that “An action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency ....” Section 2672 authorized the Attorney General to prescribe regulations applicable to the consideration and settlement of tort claims against the United States prior to suits being filed in federal court. A claimant now has to satisfy an “administrative claim” requirement before the federal courts have jurisdiction to entertain a suit based on the claim. Congress had three specific purposes in passing the 1966 amendments to the FTCA. It wished to reduce the burden placed on the federal courts by facilitating the settlement of claims at the administrative level, decrease the cost of processing claims at both the administrative and judicial levels, and promote fair and equitable treatment of claimants. See H.Rep. No. 1532, supra, at 6; S.Rep. No. 1327, 89th Cong., 2d Sess. 11, reprinted in 1966 U.S.Code Cong. & Ad. News 2515, 2524 (statement of Nicholas deB. Katzenbach, Attorney General). See generally Note, Claim Requirements of the Federal Tort Claims Act: Minimal Notice" }, { "docid": "613402", "title": "", "text": "administrative relief before turning to the courts. See 28 U.S.C. §§ 2401(b), 2675(a). Congress was motivated by a desire to reduce congestion in the courts and by statistics showing that most claims against the government were settled, thus suggesting that an administrative scheme could be very effective. S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad.News 2515, 2516-18; Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980) (recognizing these as the reasons for the administrative exhaustion requirement); Comment, 29 Emory L.J. at 766. The FDA, subsumed in section 2679(b)-(d) of the FTCA, which had previously referred to the plaintiff’s exclusive remedy “by suit” was changed to read, “The remedy against the United States provided by sections 1346(b) and 2672 of this title ... shall hereafter be exclusive_” Section 2679(b) (emphasis added). Congress’ substitution of the administrative remedies provision, section 2672, for the phrase “by suit” strongly suggests that Congress intended FDA cases to begin with an administrative claim, not a lawsuit. This interpretation is borne out by the legislative history, which states that this change in the FDA was designed to “make it conform” with the administrative exhaustion requirement. S.Rep. No. 1327, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad.News 2515, 2521. Houston argues that the amendment adds an administrative claim as a possible remedy, without eliminating the remedy by suit. Admittedly, Congress could have made the matter clearer by incorporating section 2675(a) within the FDA. Section 2675(a) says, \"An action shall not be instituted\" until the administrative claim is denied. See Comment, 29 Emory L.J. at 782 (discussing this ambiguity in section 2679(b)). But the interpretation suggested by Houston underestimates Congress' deletion of the phrase \"by suit\" from section 2679(b) and, more importantly, Houston's interpretation would undermine the goals of efficient administrative settlement and reduced congestion in the courts that Congress sought to achieve by the 1966 amendments. Finally, it would not be logical to assume that Congress imposed an administrative exhaustion requirement for all tort claims against the United States, except for claims arising from collisions with" }, { "docid": "18794017", "title": "", "text": "II, supra note 2, 591 F.Supp. at 1342. . Pub.L. No. 89-506, § 2(a), 80 Stat. 306 (1966) (codified at 28 U.S.C. § 2675(a) (1982)) (text reproduced supra at note 7). . See Pub.L. No. 86-238, § 1, 73 Stat. 471 (1959) (amended in 1966); see also S.Rep. No. 1327, supra note 9, at 2, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, 2516. . S.Rep. No. 1327, supra note 9, at 2, reprinted in [1966] U.S.Code Cong. & Admin.News 2525, 2527 (“[t]he committee observes ... that under the present provisions of law, even if the agency finds that it is clearly liable and desires to settle the claim quickly in the interest of justice and fairness, it cannot do so if the claim is for more than $2,500”). In addition to eliminating the $2,500 limitation on administrative settlement, Congress simultaneously enlarged the authority of agencies to settle, without the approval of the Attorney General, for amounts up to $25,000. See Pub.L. No. 89-506, §§ 1, 9, 80 Stat. 306, 308 (1966) (codified at 28 U.S.C. § 2672 (1982)); S.Rep. No. 1327, supra note 9, at 4-6, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, 2518-2520. . The report of the Senate Committee on the Judiciary, S.Rep. No. 1327, supra note 9, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, adopts in material part the report of the House Committee on the Judiciary, H.R.Rep. No. 1532, 89th Cong., 2d Sess. (1966). Subsequent references to the committee reports are cited to the Senate Report. . S.Rep. No. 1327, supra note 9, at 2, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, 2516. . See text supra at note 92. . See 28 U.S.C. § 2675(a) (1982). . S.Rep. No. 1327, supra note 9, at 5, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, 2518-2519. . Id. at 6, reprinted in [1966] U.S.Code Cong. & Admin.News 2515, 2519-2520. ! . See id. at 8, reprinted in [1966] U.S.Cod^ Cong. & Admin.News 2515, 2518 (final denial of presented claim \"includes instances where partial approval of a claim results in an offer unacceptable to" }, { "docid": "5573434", "title": "", "text": "claim and that appellant’s complaint stated a cause of action for false imprisonment, a cause of action excepted under the statute. 28 U.S.C. § 2680(h). Appellant now appeals the dismissal of the claims under the Federal Tort Claims Act. II. FEDERAL TORT CLAIMS ACT A. Administrative Requirements of the FTCA The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, waives the sovereign immunity of the United States to suits in tort. The prerequisite for liability under the Act is a “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). However, unlike a suit against a private person, the Congress has created an administrative procedure that claimants must follow and exhaust. This procedure allows the agency involved to receive a claim, investigate, and perhaps settle the dispute before a suit is filed. 28 U.S.C. § 2675. Section 2675 provides that “[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied.” The stated legislative purpose of this administrative prerequisite was to balance the goal of efficiently encouraging settlement between the agency and the claimant with the desire to provide “fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government.” S.Rep. No. 1327, 89th Cong., 2d Sess. 2, reprinted in 1966 USCCAN 2515, 2516. Section 2675 requires that the potential plaintiff give notice to the government of the nature of the claim and the damages requested. 28 U.S.C. § 2675(a). Failure to timely file an administrative claim with the appropriate federal agency results in dismissal of the plaintiff’s claim, since the filing of an administrative claim is a non-waivable jurisdictional requirement. Unit ed States v." } ]

[ { "docid": "22896766", "title": "", "text": "and a reason for disciplinary action taken, and (3) an opportunity to call witnesses and present documentary evidence. Smith v. Rabalais, 659 F.2d 539, 542 (1981). The findings of a prison disciplinary hearing will not be disturbed unless they are arbitrary and capricious. Id. at 545. The question the appellate court must consider is whether a decision is supported by “some” evidence or whether any evidence at all supports the action taken by the prison officials. Id. After reviewing the records, we find that all the procedural requirements were followed. Banuelos was given advance notice of the hearing. There is written documentation of his punishment and testimony about why the punishment was given. Banuelos did not call any witnesses at the hearing. In his brief, Banuelos did not allege that he made an oral request to the hearing officer to call witnesses. Thus, the reason no witnesses were called was the fault of Banuelos or his counsel substitute, a fault we have already decided cannot be addressed by a § 1983 claim. There is ample evidence in the record to support the decision made by the disciplinary council. Banuelos was charged with engaging in a fight. In Banuelos’ own statement, he admitted that he struck another inmate named Peterson, starting the fight, as Peterson walked towards him. Banuelos admittedly had antagonized Peterson by calling him a snitch. There are also written statements by guards that Banuelos was engaged in a fight. This evidence is sufficient to support the decision of the disciplinary hearing. Even if the hearing officer erred in not calling witnesses, it appears that there was no prejudice to Banuelos’ rights because the testimony of the other inmates would not have changed the result of the proceeding. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (holding that prejudice must result in order for there to be a constitutional violation). We therefore find this contention to be without merit. Indifference to Medical Needs Argument Banuelos also contends that prison officials were deliberately indifferent to his serious medical needs. He argues that" } ]

[ { "docid": "10980862", "title": "", "text": "however, does not by itself constitute a deprivation of due process since “federal constitutional standards rather than state law define the requirements of procedural due process.” Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.1990). In .the context of an inmate disciplinary hearing in which plaintiff has alleged deprivation of a liberty interest, due process is satisfied if the hearing record discloses that the finding was based upon “ ‘some evidence from which the conclusion of the administrative tribunal could be adduced.’ ” Superintendent, Massachusetts Correctional Inst. v. Hill 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary hearing officer. Id. Due Process requires that an inmate facing disciplinary charges — at least charges which may result in loss of good time credit — be given a hearing, including an opportunity to call witnesses and present documentary evidence in his defense. Wolff v. McDonnell 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). However, this is not an unlimited right; prison officials may refuse to call witnesses if doing so would be “unduly hazardous to institutional safety or correctional goals,” or if it would be irrelevant, unnecessary, or extend the hearing beyond reasonable limits. 418 U.S. at 566, 94 S.Ct. at 2979-80. The Supreme Court’s recent decision in Sandin v. Conner, — U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), however, significantly changes the prisoner due process landscape. The Supreme Court held: In light of the above discussion, we believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum [v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 [1976]. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the" }, { "docid": "2079008", "title": "", "text": "these disciplinary procedures are applicable to pretrial detainees. 28 C.F.R. § 551.116. It is clear that DHO Ham followed the regulations for disciplinary hearings and sanctions as set forth in the federal regulations, thus he was not deliberately indifferent to Edwards’ due process rights. III. Other Due Process Issues Edwards further alleges that the procedures used during his disciplinary hearing violated his due process rights. Specifically, Edwards argues that DHO Ham’s refusal to accept his written statement and Aucoin’s refusal to follow departmental directives regarding representation of detainees violated his constitutional rights. Again, these complaints concern episodic acts instead of a general complaint about all disciplinary hearing procedures conducted at the detention center. Therefore, Edwards must plead facts that would demonstrate that the defendants were deliberately indifferent to his rights. In Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that a pretrial detainee who is placed in solitary confinement pursuant to disciplinary proceedings may be entitled to more extensive due process protections. These protections include having the right to receive written notice of the charges against him at least twenty-four hours before the hearing, a written statement of the evidence relied on, reasons for the disciplinary action being taken, and the opportunity to present witnesses and documentary evidence. Id. at 563-66, 94 S.Ct. 2963. All of these procedures were observed in the present case. From Edwards’ complaint, and the accompanying exhibits, it is clear that Edwards received written notice of the charges against him, a written statement of the evidence against him, and he was afforded an opportunity to present witnesses. Although Edwards now claims his written statement was not accepted for consideration, the report which was made at the time of the hearing summarizes Edwards’ statement. Edwards also contends that Au-coin did not follow regulations for representing detainees. However, Edwards does not specifically state in his complaint, or on appeal which regulations were not followed. Furthermore, a violation of prison regulations in itself is not a constitutional violation. See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir.1989). Therefore," }, { "docid": "22417236", "title": "", "text": "claim based on the denial of a visit with his mother as both frivolous and for failure to state a claim upon which relief may be granted. II. Due Process Claim Berry alleged that Brady violated his rights to due process under the Fourteenth Amendment by punishing him without adhering to relevant prison policies and procedures. The magistrate judge properly dismissed Berry’s due process claim. The application of the Fourteenth Amendment’s due process clause has been narrowed considerably in the prison context. As this Court has noted, “[a]fter Sandin v. Conner, [515] U.S. [472], 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), prisoners may no longer peruse state statutes and prison regulations searching for the grail of limited discretion.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995) (per curiam). In Sandin, the Court noted: “that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84, 115 S.Ct. at 2300 (internal citations omitted). Sandin itself involved a thirty-day period of disciplinary segregation, “a severe form of prison discipline,” yet ruled that such discipline did not rise to the level required to support a due process claim. Orellana, 65 F.3d at 31. “Few other incidents of prison life involve such a level of deprivation as disciplinary segregation.” Id. The asserted “punishments” endured by Berry do not rise to the level of “atypical and significant hardship[s] ... in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. The denial of one visitation session and eight meals over a seven-month period without an allegation that he did not receive a minimally nutritionally adequate diet are insufficient to implicate a liberty interest. The magistrate judge properly dismissed Berry’s due process claims" }, { "docid": "22218578", "title": "", "text": "process. Rather, Smith claims that Mensinger issued a misconduct report to retaliate against Smith for his conduct toward Mensinger and to cover up a beating. Thus, Smith claims that the misconduct report was not intended to enforce prison regulations at all, and it was therefore improper to impose a disciplinary sanction. However, even assuming that the district court did misconstrue the crux of Smith’s due process claim, it is nevertheless evident that the court’s rejection of that claim was correct. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), an inmate had been charged with multiple disciplinary infractions, but the inmate’s request to produce certain witnesses at his hearing was refused by the hearing committee because the witnesses were unavailable. The committee found the inmate guilty of the charged misconduct and sentenced him to 30 days in segregated confinement. Thereafter, he brought a § 1983 suit claiming that the hearing did not satisfy the requirements of due process. See Sandin, 515 U.S. at 475-76, 115 S.Ct. 2293. The Court disagreed. The Court held that confinement in administrative or punitive segregation will rarely be sufficient, without more, to establish the kind of “atypical” deprivation of prison life necessary to implicate a liberty interest. Therefore, the Court found that the inmate’s segregated confinement was not a denial of due process. See id. at 486, 115 S.Ct. 2293. Prison disciplinary proceedings may, however, constitute a denial of due process in the context of a civil rights action under § 1983 when they are instituted for the sole purpose of retaliating against an inmate for his/her exercise of a constitutional right. In Allah v. Seiverling, 229 F.3d 220 (3d Cir.2000), we stated: Sandin instructs that placement in administrative confinement will generally not create a liberty interest. Retaliation may be actionable, however, even when the retaliatory action does not involve a liberty interest. [Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right. Seiverling, 229 F.3d at" }, { "docid": "22949921", "title": "", "text": "Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir.2002) (internal quotation marks and citations omitted). In other words, where there is no state-created liberty interest, the Due Process Clause applies only if the restraints at issue exceed the prisoner’s sentence “in such an unexpected manner as to give rise to protection by the Due Process Clause of [their] own force” and do not violate any other constitutional provision. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Because disciplinary detention and “administrative segregation [are] the sort[s] of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” Torres’s transfer to “less amenable and more restrictive quarters” did not implicate a liberty interest protected by the Due Process Clause. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Fraise, 283 F.3d at 522. Nor was Torres deprived of any state-created liberty interest. In Sandin, the Supreme Court sharply curtailed the situations in which the negative implications of mandatory language in state laws or regulations can create a protected liberty interest in the prison context. The case involved a prisoner’s claim that Hawaii prison officials deprived him of due process when they charged him with misconduct and, following a hearing, placed him in disciplinary segregation in the “Special Holding Unit” for 30 days. Id. at 475-76, 115 S.Ct. 2293. The Ninth Circuit Court of Appeals concluded that because a prison regulation in Hawaii required that substantial evidence must support a misconduct charge, the prisoner was deprived of a protected liberty interest if he was put in segregation pursuant to a decision lacking such evidentiary support. Id. at 476-77, 115 S.Ct. 2293. The Supreme Court reversed, explaining that the focus must be on the nature of the deprivation, not merely on the language of state laws and regulations. Id. at 481-84, 115 S.Ct. 2293. The Court explained that mandatory language in a state law or regulation can create a protected liberty interest only if the alleged deprivation “imposes atypical and significant hardship on the inmate in relation to the ordinary" }, { "docid": "4400930", "title": "", "text": "due process requirements that must be afforded prisoners in disciplinary proceedings. These are 1) that written notice of the charges be provided to the inmate at least 24 hours in advance of the proceeding; 2) that the inmate be provided with a written statement by the fact-finders discussing the evidence and reasons supporting the action; and 3) the inmate be afforded the opportunity, so far as safety and security allow, to call witnesses and present documentary evidence. Id., 418 U.S. at 563-66, 94 S.Ct. at 2978-79; Tyler v. Black, 811 F.2d at 429. In recognizing that “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply”, the Court refused to hold that a prisoner has a right to either retained or appointed counsel in disciplinary proceedings. Id., 418 U.S. at 556, 570, 94 S.Ct. at 2975, 2981. Plaintiff believes his due process rights were violated because he was not allowed to call requested witnesses nor was he allowed to take a lie detector test. Neither of these claims rise to the level of a constitutional violation of his due process rights. An inmate has the constitutional right to call witnesses and present documentary evidence in his defense, but only when doing so would not be “unduly hazardous to institutional safety or correctional goals”. Wolff, at 566, 94 S.Ct. at 2979; Brown v. Frey, 889 F.2d 159, 167 (8th Cir.1989); Strickland v. Delo, 758 F.Supp. 1319, 1321-22 (E.D.Mo.1991). A great deal of latitude is accorded to the prison official’s determination as to whether or not a prisoner’s witnesses shall be called. Wolff, 418 U.S. at 566, 94 S.Ct. at 2979. “The deference accorded prison officials limits (Brown’s) clearly established right to call witnesses by giving them broad discretion to reject an inmate’s request for institutional security reasons, to prevent the undermining of prison authority, to foster correctional goals, to exclude irrelevant or unnecessary testimony, or testimony which would create a risk of reprisal.” Brown v. Frey, at 167. The Brown Court noted that this discretion is" }, { "docid": "22188737", "title": "", "text": "“standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that [his] conduct deprived a victim of his rights, [he] is not entitled to qualified immunity.” Haugen v. Brosseau, 339 F.3d 857, 873, 2003 U.S.App. LEXIS 15517, at *42 (9th Cir. Aug. 4, 2003) (citation omitted); see also Pelzer, 536 U.S. at 740 n. 10, 122 S.Ct. 2508 (“The object of the ‘clearly established’ immunity standard is not different from that of ‘fair warning’ ....”) (citation and alteration omitted). If a genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial. Roth v. Veteran’s Admin., 856 F.2d 1401, 1408-1410 (9th Cir.1988). C. 1. Under the Fourteenth Amendment’s Due Process Clause, a prisoner is entitled to certain due process protections when he is charged with a disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 564-571, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Such protections include the rights to call witnesses, to present documentary evidence and to have a written statement by the factfinder as to the evi dence relied upon and the reasons for the disciplinary action taken. Id. These healthy procedural protections, however, adhere only when the disciplinary action implicates a protected liberty interest in some “unexpected matter” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Ramirez v. Galaza, 334 F.3d 850, 860 (2003) (“If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process.”) (citations omitted). The Supreme Court has identified few protected liberty interests. See, e.g., Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (identifying the freedom from transfer to a mental hospital as a protected liberty interest); Washington v. Harper, 494 U.S. 210, 221 222, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (identifying the freedom from" }, { "docid": "2079009", "title": "", "text": "having the right to receive written notice of the charges against him at least twenty-four hours before the hearing, a written statement of the evidence relied on, reasons for the disciplinary action being taken, and the opportunity to present witnesses and documentary evidence. Id. at 563-66, 94 S.Ct. 2963. All of these procedures were observed in the present case. From Edwards’ complaint, and the accompanying exhibits, it is clear that Edwards received written notice of the charges against him, a written statement of the evidence against him, and he was afforded an opportunity to present witnesses. Although Edwards now claims his written statement was not accepted for consideration, the report which was made at the time of the hearing summarizes Edwards’ statement. Edwards also contends that Au-coin did not follow regulations for representing detainees. However, Edwards does not specifically state in his complaint, or on appeal which regulations were not followed. Furthermore, a violation of prison regulations in itself is not a constitutional violation. See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir.1989). Therefore, Edwards has failed to state a claim upon which relief can be granted regarding the disciplinary procedures used at his hearing. IV. First Amendment Edwards argues that placing him in “solitary confinement” for passing a note to the visitors is a violation of his First Amendment rights of freedom of expression and freedom to communicate with the press. Edwards raised the First Amendment claim in the district court as a violation of his right of access to the press; however, the district court construed the claim liberally to assert also a violation of his right to free speech. The district court found that Edwards was disciplined, not for speaking to the visitors, but for handing a note to a visitor. The district court determined that Edwards did not have a constitutional right to have physical contact with the public. Edwards has not provided support for his assertion that the sanction, which was imposed for handing a note to a visitor, implicated his right to free speech. A pretrial detainee’s First Amendment rights are implicated if" }, { "docid": "18050020", "title": "", "text": "judicial review. Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.1976). Nor did plaintiffs administrative segregation confinement violate his Fourteenth Amendment rights. “It is recognized that inmates are not entitled to a particular degree of liberty in prison, and that ordinarily a change in an inmate’s prison classification to administrative segregation does not deprive the inmate of liberty.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). Moreover, there is no right independently protected under the Due Process Clause to remain in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). A decision by prison officials to place an inmate in administrative segregation, therefore, does not implicate the Due Process Clause unless the confinement presents “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. Sandin, which applies retroactively, Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996), makes clear that an inmate’s segregated confinement is not such a deprivation. Summary judgment, therefore, is warranted on this claim. B. Pursuit of Charges Against Plaintiff Plaintiff next challenges defendant’s decision to allow the disciplinary hearing on plaintiffs aggravated sodomy charges to proceed. Plaintiff alleges that this decision violated his Due Process and Equal Protection rights under the Constitution. The court finds no merit in this claim. 1. Due Process [5] Plaintiff contends that defendant violated his Due Process rights by failing to identify the offense for which he was charged prior to transferring him to administrative segregation. The court rejects this argument. Although a prisoner may not be punished prior to an adjudication of guilt in accordance with due process of law, he is not entitled to the full panoply of rights available to citizens outside the prison walls. Sandin, 515 U.S. at 484-85, 115 S.Ct. at 2300-01 (citations omitted). An inmate does have a right to advance written notice of the charges levelled against him and a written statement of the underlying evidentiary foundation for those charges. Wolff v. McDonnell, 418 U.S. 539, 563-65, 94" }, { "docid": "18050019", "title": "", "text": "dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. III.Discussion Plaintiff claims violations of his federal constitutional rights arising out of defendant’s decision to (1) confine plaintiff to administrative segregation pending a disciplinary hearing; and (2) pursue an investigation and disciplinary hearing on the sodomy allegations made against plaintiff. The court will consider each claim in turn. A. Administrative Segregation Pending Hearing Plaintiff first alleges that defendant violated his Eighth and Fourteenth Amend ment rights by placing him in administrative segregation pending the outcome of his disciplinary hearing. The court disagrees. Assuming that the conditions of confinement do not involve unnecessary infliction of pain, a prison’s placement of an inmate in segregation does not constitute cruel and unusual punishment. Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir.1987). Prison administrators must be accorded broad flexibility in matters of internal security, Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 2299-2300, 132 L.Ed.2d 418 (1995), and absent a clear abuse of discretion, placement decisions are not subject to judicial review. Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.1976). Nor did plaintiffs administrative segregation confinement violate his Fourteenth Amendment rights. “It is recognized that inmates are not entitled to a particular degree of liberty in prison, and that ordinarily a change in an inmate’s prison classification to administrative segregation does not deprive the inmate of liberty.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). Moreover, there is no right independently protected under the Due Process Clause to remain in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). A decision by prison officials to place an inmate in administrative segregation, therefore, does not implicate the Due Process Clause unless the confinement presents “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. Sandin, which applies retroactively, Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996), makes clear that an inmate’s segregated confinement is not such a deprivation." }, { "docid": "8388705", "title": "", "text": "present witnesses at his disciplinary hearing and then sentenced him to 30 days in segregation. The Supreme Court held that neither the Hawaii prison regulations nor the Due Process Clause afforded the inmate a liberty interest entitling him to the procedural protections afforded by the Constitution. Id. at —, 115 S.Ct. at 2301. The Court found that while States can create liberty interests, those interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected mariner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at —, 115 S.Ct. at 2299 (citations omitted). The Court determined that the inmate’s placement in disciplinary segregation for thirty days “did not work a major disruption [in the plaintiffs] environment” and thus, did not constitute the “kind of atypical, significant deprivation in which a state might create a liberty interest.” Id. at —-—, 115 S.Ct. at 2300-01. The decision in San-din applies retroactively. Samuels v. Mockry, 77 F.3d 34, 37 (2d Cir.1996). Here, there is disagreement as to how long plaintiff was placed in SHU. The court will assume for purposes of this discussion that plaintiffs stay in SHU was for 35 days, as he argues. In applying Sandin, plaintiff has not alleged any “atypical” and “significant deprivation” resulting from his stay in SHU “in relation to the ordinary incidents of prison life.” Plaintiff did not have a protected liberty interest in remaining free from SHU entitling him to the procedural protections required under the Constitution. Even if a liberty interest existed, defendants satisfied the minimum due process requirements. Plaintiff was given notice of the charges against him and an opportuni ty to present his views to the UDC and the DHO within a reasonable amount of time. See Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Accordingly, summary judgment will be granted on these claims. 4. Equal Protection Plaintiff alleges that defendants Lynch, Ramlal" }, { "docid": "22188755", "title": "", "text": "on Serrano’s equal protection claim. IV. We AFFIRM the district court’s dismissal of Serrano’s due process claim under Federal Rule of Civil Procedure 12(b)(6), but we do so on the alternate ground that Francis is entitled to qualified immunity. We REVERSE the district court’s decision to grant summary judgment as to Serrano’s equal protection claim because Serrano has alleged sufficient facts to convince a reasonable trier of fact by a preponderance of the evidence that Francis refused to allow him to call live witnesses because of Serrano’s race. . Appellant describes himself as \"black,” and we will do the same. See, e.g., Appellant's Brief at 21-23. . We note that Serrano independently added the bracketed ''[pie]” to the word \"Crip” in his declaration in support of his statement of objections. We do not know whether Francis intended Serrano’s suggested interpretation. . At the time of the hearing in September 1995, the murder trial of O.J. Simpson was in full swing — involving the murders to which Francis was apparently alluding. . Serrano was placed in administrative segregation from August 20, 1995 to October 11, 1995, when his sentence was suspended and he was transferred to another prison. . We would, in any event, apply a de novo standard of review to a district court’s decision to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436-437 (9th Cir.1995). . Although individuals with disabilities do not qualify as a \"suspect class” of persons under the Equal Protection Clause of the Fourteenth Amendment, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), that classification or lack thereof is immaterial to our analysis here. Our inquiry is limited to whether the disciplinary action implicates a protected liberty interest in some \"unexpected matter” or imposes an \"atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-484, 115 S.Ct. 2293. . Although we note that Francis himself was not directly responsible for the" }, { "docid": "22218577", "title": "", "text": "Accordingly, the district court erred in dismissing Smith’s Eighth Amendment claim against Paulukonis. D. Smith’s Due Process Claim In a separate opinion, the district court also held that Smith could not establish a due process claim under Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997). See Smith I, 1998 WL 151803, at *5. The district court reasoned that Smith “was subjected to seven months disciplinary time, a period of time half of that implicated in Griffin.” Id. The court reasoned that, even assuming that the misconduct reports were issued to cover up the use of excessive force, the disciplinary sanction still did not constitute a due process violation as it did not rise to the level of an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Id., quoting Griffin, 112 F.3d at 706. Smith argues that the district court misinterpreted the basis of his due process claim. Smith does not claim that the seven months disciplinary sanction was a violation of a liberty interest and therefore a denial of due process. Rather, Smith claims that Mensinger issued a misconduct report to retaliate against Smith for his conduct toward Mensinger and to cover up a beating. Thus, Smith claims that the misconduct report was not intended to enforce prison regulations at all, and it was therefore improper to impose a disciplinary sanction. However, even assuming that the district court did misconstrue the crux of Smith’s due process claim, it is nevertheless evident that the court’s rejection of that claim was correct. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), an inmate had been charged with multiple disciplinary infractions, but the inmate’s request to produce certain witnesses at his hearing was refused by the hearing committee because the witnesses were unavailable. The committee found the inmate guilty of the charged misconduct and sentenced him to 30 days in segregated confinement. Thereafter, he brought a § 1983 suit claiming that the hearing did not satisfy the requirements of due process. See Sandin, 515 U.S. at 475-76, 115 S.Ct. 2293. The Court disagreed." }, { "docid": "3833894", "title": "", "text": "B. Count 4: Violation of Due Process by Spoliation of Disciplinary Proceeding (Pendleton). In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court set forth the due process requirements associated with prison disciplinary hearings. Those requirements include written notice of the charges at least twenty-four hours in advance of the hearing, id. at 564, 94 S.Ct. 2963, and the ability to call witnesses and present documentary evidence, id. at 566, 94 S.Ct. 2963. The Wolff Court also implied the obvious: that the essence of a fair hearing is an impartial decisionmaker. Id. at 570-71, 94 S.Ct. 2963. The lower court’s instructions on this point stated that the absence of any one of these protections could constitute a due process violation. Pendleton did not challenge that instruction in the court below. The instruction has, therefore, become the law of the case. See Milone v. Moceri Family, Inc., 847 F.2d 35, 38-39 (1st Cir.1988). Although Pendleton’s appellate brief is equally silent on the point, her counsel claimed during oral argument in this court that the decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), rendered nugatory the rights enumerated in Wolff. This newly minted argument is likely waived. See, e.g., Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir.1990) (noting that arguments not raised in an appellant’s brief are waived, even though urged at oral argument). At best, it is forfeited. See Chestnut, 305 F.3d at 20. We need not dwell on such niceties, however, because Sandin, taken at face value, is of no help to Pendleton. In Sandin, the Supreme Court explained that prison regulations creating procedures that were to be followed before taking away an inmate’s ordinary privi leges do not afford the inmate a liberty interest in avoiding the loss of those privileges unless such a loss will result in an \"atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.\" 515 U.S. at 483-84, 115 S.Ct. 2293. The Court held that a thirty-day period of punitive segregation, imposed" }, { "docid": "23053344", "title": "", "text": "in Sandin v. Conner, 515 U.S. 472, 484, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court concluded that a prisoner is entitled to due process before he is subjected to conditions that “impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” or disciplinary actions that “inevitably affect the duration of his sentence.” See also Talley v. Hesse, 91 F.3d 1411, 1414 (10th Cir. 1996) (discussing these two ways of establishing a liberty interest under Sandin). As a general rule, before officials may take actions that affect these protected liberty interests, they must afford a prisoner (a) advance written notice of the charges; (b) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (c) a written statement by the factfinder of the evidence relied upon on and the reasons for the disciplinary action. Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). In addition, the decision must be supported by some evidence. Id. In this appeal, Mr. Wilson contends that: (a) requiring state-court exhaustion in this type of habeas appeal is futile; (b) his Class X misconduct conviction inevitably affected the length of his sentence and thus infringed a liberty interest; and (c) no evidence supported that conviction. As a result, he concludes, prison officials violated his due process rights. Each of these issues involves questions of law, and our review is thus de novo. See Gamble, 375 F.3d at 1027 (sufficiency of the evidence); Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.2000) (exhaustion); Harper v. Young, 64 F.3d 563, 566 (10th Cir.1995) (existence of a liberty interest). For the reasons set forth below, we are persuaded by Mr. Wilson’s arguments as to all three issues. A. Exhaustion of Remedies A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally-required to exhaust state remedies. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000). However, that requirement is not applicable when the prisoner has no adequate" }, { "docid": "18685381", "title": "", "text": "Court of Appeals has stated: [A]n inmate who is facing prison disciplinary charges that could result in punitive segregation is entitled, at a minimum, to advance written notice of the charges against him and of the evidence available to the factfinder. He must be permitted to marshal the facts and prepare his defense. A written record of the proceedings must be kept. The inmate must be allowed to call witnesses and present documentary evidence in his defense. Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). The inadequacy of notice, therefore, would have the effect of depriving the plaintiff of the ability to present a meaningful defense, thereby negating much, if not all, of the procedural protections that such notice purported to provide. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). Thus, assuming that the plaintiff possessed a liberty interest in not being confined to the SHU for a period of fourteen days, the plaintiff would succeed in stating an independent cause of action with respect to such confinement. See Wright v. Smith, 21 F.3d 496, 499 (2d Cir.1994); McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir.1983) (confinement to a SHU for seven days as a punishment triggers right to some due process protection, as does confinement to quarters for 14 days as a punishment); see also Walker v. Bates, 23 F.3d 652, 659 (2d Cir.1994) (absent showing of good reason for denial of request to call witnesses at disciplinary hearing, fact that prisoner was successful on administrative appeal did not bar his claim for relief under § 1983), cert. denied, — U.S. —, 115 S.Ct. 2608, 132 L.Ed.2d 852 (1995); Patterson, 761 F.2d at 892 (placement of prisoner in SHU without prior hearing violates due process notwithstanding availability of post-deprivation remedy; this was so because question of fact existed as to whether the decision to place plaintiff in the SHU was made by officials with final authority over that decision, and therefore did not constitute a random and" }, { "docid": "14916162", "title": "", "text": "459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983); Bailey v. Shillinger, 828 F.2d 651, 652 (10th Cir.1987). Prison officials have broad administrative and discretionary authority to remove inmates from the general prison population. Hewitt, 459 U.S. at 467- 68, 103 S.Ct. at 869-70. A decision by prison officials to place the inmate in nonpunitive administrative segregation does not implicate the Due Process Clause of the Fourteenth Amendment unless the confinement presents “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995). Sandin makes clear that an inmate’s segregated confinement is not such a deprivation. See Rush v. McKune, 888 F.Supp. 123, 125 (D.Kan.1995) (Kansas prison regulations do not create protected liberty interest); Lloyd v. Suttle, 859 F.Supp. 1408, 1410 (D.Kan.1994) (same). The Sandin decision applies retroactively. Mujahid v. Meyer, 59 F.3d 931, 932 n. 2 (9th Cir.1995); Cody v. Jones, 895 F.Supp. 431, 441 n. 13 N.D.N.Y.1995) (same); Uzzell v. Scully, 893 F.Supp. 259, 263 n. 8 (S.D.N.Y.1995) (same). McDiffett’s administrative segregation claim does not rise to the level of a constitutional violation and is not a viable claim under Section 1983. IV. Disciplinary Hearings MeDiffett also complains the defendants’ improper handling of the disciplinary hearings violated due process, constituted cruel and unusual punishment, subjected him to double jeopardy, and violated his right to contact visitation. The plaintiff again fails to follow D.Kan. Rule 206 in supporting his factual allegations. Rather, he makes broad, conclusory statements that are not supported in the record. The basic facts as supported by the record follow. At the initial disciplinary hearing on October 13, 1992, MeDiffett moved to dismiss the charge, alleging harassment and alleging the hearing officer lacked knowledge of IMPP 12-124. When defendant Keckler, the hearing officer, denied the motion, MeDiffett asked for a continuance in order to seek a different hearing officer. Keckler denied the request; however, based upon the plaintiffs request for counsel, the hearing was continued. The hearing resumed on October 21, 1992, with" }, { "docid": "23053343", "title": "", "text": "three issues: (1) whether Mr. Wilson properly exhausted his state-court remedies; (2) whether his reclassification deprived him of a constitutionally protected liberty interest; and (3) if so, whether the reclassification violated his due process rights because there was insufficient evidence to prove his alleged misconduct. Subsequent to the district court’s decision, this court, in Gamble v. Calbone, granted habeas relief to two prisoners from the same prison as Mr. Wilson, who had also been convicted of the same Class X misconduct based on the same “evidence” as Mr. Wilson. 375 F.3d 1021 (10th Cir.2004). We ordered that the State provide additional briefing in light of Gamble on the issue of whether Mr. Wilson’s suspended punishment could ever be reinstated. After receipt of the supplemental brief, we ordered oral argument and the appointment of a federal public defender to represent Mr. Wilson. II. DISCUSSION The Fourteenth Amendment prohibits states from depriving citizens of liberty without due process of law. Although their due process rights are defined more narrowly, that guarantee applies to prisoners as well. Thus, in Sandin v. Conner, 515 U.S. 472, 484, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court concluded that a prisoner is entitled to due process before he is subjected to conditions that “impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” or disciplinary actions that “inevitably affect the duration of his sentence.” See also Talley v. Hesse, 91 F.3d 1411, 1414 (10th Cir. 1996) (discussing these two ways of establishing a liberty interest under Sandin). As a general rule, before officials may take actions that affect these protected liberty interests, they must afford a prisoner (a) advance written notice of the charges; (b) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (c) a written statement by the factfinder of the evidence relied upon on and the reasons for the disciplinary action. Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). In" }, { "docid": "22333389", "title": "", "text": "will therefore employ the same de novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997); accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.1996). As to the dismissal pursuant to § 1915(e)(2) (B) (i), we review a determination by a district court that a case is frivolous for abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). A complaint is frivolous if it lacks an arguable basis in law or fact. Id. We have reviewed the record and find neither error nor abuse of discretion in the reasoning of the district court as to Black’s claim of a due process violation because he did not receive advanced written notice of the charge. Black v. Warren, No. 9:96-CV-359 (E.D.Tex. Oct. 28,1996). Black has not demonstrated plain error with respect to his contention, raised for the first time in this appeal, that he was deprived of due process because he was not allowed to present documentary evidence or to call witnesses at the hearing. See Robertson v. Plano City of Tex., 70 F.3d 21, 23 (5th Cir.1995); Sandin, 515 U.S. at 484-85, 115 S.Ct. at 2300-01. Assuming TDCJ-ID procedural rules regarding notice and the right to call witnesses and present documentary evidence were violated, Black has not shown that such errors rise to the level of a constitutional due process claim. See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir.1989). Even if a constitutional liberty interest is implicated by Black’s challenge to the disciplinary decision on the ground that no evidence supports the charge, the record reveals that “some evidence” supports the charge. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir.1995). AFFIRMED." }, { "docid": "22333388", "title": "", "text": "PER CURIAM: Jerome Black, Texas prisoner #634349, appeals the district court’s dismissal of his civil rights claims as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)® & (ii). Black argues that the district court erred in dismissing his claims of due process violations during a disciplinary hearing pursuant to Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). He contends that Texas created a liberty interest by enacting certain Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) procedural rules governing prison disciplinary hearings. He also argues that no evidence supported the disciplinary action taken against him. The Prison Litigation Reform Act (PLRA) amended § 1915 to require the district court to dismiss in forma pauperis (IFP) prisoner civil rights suits if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. § 1915(e)(2)(B)® & (ii); see also, § 1915A(b)(l). The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6). We will therefore employ the same de novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997); accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.1996). As to the dismissal pursuant to § 1915(e)(2) (B) (i), we review a determination by a district court that a case is frivolous for abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). A complaint is frivolous if it lacks an arguable basis in law or fact. Id. We have reviewed the record and find neither error nor abuse of discretion in the reasoning of the district court as to Black’s claim of a due process violation because he did not receive advanced written notice of the charge. Black v. Warren, No. 9:96-CV-359 (E.D.Tex. Oct. 28,1996). Black has not demonstrated plain error with respect to his contention, raised for the first time in this appeal, that he was deprived of" } ]

[ { "docid": "16629860", "title": "", "text": "Memorandum Opinion and Order GOLDBERG, Senior Judge: This matter is before the Court on the plaintiffs’ motion for judgment upon the agency record, pursuant to USCIT R. 56.1(c)(1). The plaintiffs, five former employees of Rohm and Haas, a manufacturer of specialty chemicals, challenge the denial by the United States Secretary of Labor (“Secretary”) of their petition for trade adjustment assistance (“TAA”) under the Trade Act of 1974 (“ 74 Act”), 19 U.S.C. § 2271 et seq. (2000). The Court has jurisdiction pursuant to 19 U.S.C. § 2395(c) (2000) and 28 U.S.C. § 1581(d)(1) (2000). The plaintiffs contest the Secretary’s determination that the third criterion of Section 222 of the 74 Act, 19 U.S.C. § 2272(a)(3), was not satisfied because increased imports had not “contributed importantly” to the plaintiffs’ loss of employment. For the reasons set forth below, the Court concludes that the Secretary’s determination is not supported by substantial evidence and is not in accordance with law. The Court remands the case to the United States Department of Labor (“Labor”) for further investigation and redetermination of the plaintiffs’ eligibility for TAA benefits. I. Background A. The TAA Statute The Trade Act of 1974 provides trade adjustment assistance to workers who have been partially or totally displaced as a result of increased imports. Former Employees of Hawkins Oil & Gas, Inc. v. U.S. Sec’y of Labor, 15 CIT 653, 654 (1991). The Secretary must certify a group of workers as eligible to apply for trade adjustment assistance if she determines: (1) that a significant number or proportion of theworkers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm orsubdivision have decreased absolutely, and (3) that increases of imports of articles like ordirectly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 74 Act § 222, 19 U.S.C. § 2272(a) (emphasis added)." } ]

[ { "docid": "9592618", "title": "", "text": "Nagy v. Donovan, 6 CIT 141, 145, 571 F.Supp. 1261, 1264 (1983) (interpreting eligibility requirements' to receive trade adjustment assistance benefits established by 19 U.S.C. § 2272(3) (1980)). Defendant contends the Supplemental Administrative Record contains substantial evidence supporting the Secretary’s determination that in applying protective coatings to steel pipe, Shaw Pipe’s Highspire facility did not “create or manufacture a tangible commodity, or transform it into a new and different article.” Id. Additionally, defendant asserts even if the Court finds the record fails to support the Department’s determination that plaintiffs did not work at a company which “create[s] or manufacturéis] a tangible commodity, or transform[s] it into a new and different article,” id., plaintiffs additionally fail to satisfy the second condition on eligibility for certification established by 19 U.S.C. § 2272(a)(3). The second condition requires a determination that an “increase[ ] of imports of articles like or directly competitive with articles produced by [plaintiffs’] firm ... contributed importantly to [plaintiffs’] total or partial separation, or threat thereof, and to such decline in sales or production.” 19 U.S.C. § 2272(a)(3) (1994). Defendant contends the Court’s finding either of these two arguments to be. supported by substantial evidence on the record provides sufficient grounds for the Court to uphold the Secretary’s determination that plaintiffs are not eligible for certification to receive trade adjustment assistance benefits. Standard of Review In reviewing determinations of the Department of Labor denying certification of eligibility to receive trade adjustment assistance benefits, this Court will sustain the Department’s determination when it is supported by substantial evidence on the record and is otherwise in accordance with law. See 19 U.S.C. § 2395(b)-(c) (1994); see also Former Employees of General Electric Corp. v. U.S. Department of Labor, 14 CIT 608, 611, 1990 WL 129488 (1990). “Substantial evidence has been held to be more than a ‘mere scintilla,’ but sufficient evidence to reasonably support a conclusion.” Former Employees of General Electric Corp., 14 CIT at 611 (citations omitted). In reviewing Labor’s determination, this Court will give deference “ ‘to the agency’s chosen [investigative] technique, only remanding a case if that technique is" }, { "docid": "20790315", "title": "", "text": "(3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. §2272(a). Subsection 2272(b)(1) defines “contributed importantly” to mean “a cause which is important but not necessarily more important than any other cause.” On this statute’s face, and as reaffirmed by the courts, all three of the foregoing requirements must be satisfied by petitioners for assistance. See, e.g., Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. United States, 22 CIT 712, 713, 20 F.Supp.2d 1288, 1290 (1998). In reviewing ETA determinations, the findings of fact by the Secretary of Labor * * *, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary to take further evidence * * *. 19 U.S.C. §2395(b). See 28 U.S.C. §2640(c). See also Former Employees of Shaw Pipe, Inc. v. United States, 21 CIT 1282, 1284, 988 F.Supp. 588, 590 (1997) (such determinations must be in accordance with law). “Substantial evidence * * * must be enough reasonably to support a conclusion”. Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed.Cir. 1987), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984). “Good cause [to remand] exists if the Secretary’s chosen methodology is so marred that his finding is arbitrary or of such a nature that it could not be based on substantial evidence”. Former Employees of Barry Callebaut v. United States, 25 CIT 1226, 1230, 177 F.Supp.2d 1304, 1308 (2001), citing Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F.Supp. 378, 381 (1989), quoting United Glass & Ceramic Workers of North America, AFL-CIO v. Marshall, 584 F.2d 398, 405 (D.C.Cir. 1978). But, in general, “the nature and extent of the investigation are matters" }, { "docid": "17283267", "title": "", "text": "347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (examining “Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?”); Irwin, 498 U.S. at 95, 111 S.Ct. 453. Defendant has produced no such evidence. Previous court decisions have repeatedly allowed equitable tolling in TAA cases. See, e.g., Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291, 1296-98 (Fed.Cir.2004) (holding sixty-day time limit for filing suit in labor TAA cases may be equitably tolled); Former Employees of Quality Fabricating, Inc. v. U.S. Sec. of Labor, 27 CIT-, -, 259 F.Supp.2d 1282, 1285-86 (2003) (equitably tolling the statute of limitations in TAA case where Department of Labor made misrepresentations to plaintiff about how she was to obtain notice of final determination); Former Employees of Siemens Info. Comm. Networks, Inc. v. Herman, 24 CIT 1201, 1208, 120 F.Supp.2d. 1107, 1113 (2000) (“Finally, the relevant legislative history fails to disclose any intent on the part of Congress to prohibit equitable tolling. Indeed, the remedial purpose of the trade adjustment assistance program supports the conclusion that equitable tolling is available in this context.”) (citation omitted). The Court notes that the precise issue in this case is one of first impression in the CIT. No court has ruled on whether equitable tolling is available with respect to an applicant’s failure to comply with 19 U.S.C. § 2401e(a)(l)’s ninety-day statutory deadline. The previous cases have all addressed the availability of equitable tolling in instances where plaintiffs have failed to commence a case in the CIT within sixty days of the reviewable determination as required by 19 U.S.C. § 2395(a). See 19 U.S.C. § 2395(a) (2005) (“[A plaintiff] may, within sixty days after notice of such determination, commence a civil action in the United States Court of International Trade for review of such determination.”). However, the Court sees no reason why this distinction should occasion a different application of the equitable tolling standards. The language and structure of 19 U.S.C. § 2401e are not suggestive of any Congressional intent to limit the equitable tolling doctrine." }, { "docid": "17283276", "title": "", "text": "That section grants the U.S. Court of International Trade (“CIT'') jurisdiction of disputes over certain plaintiffs' “eligibility'' for TAA benefits. See 28 U.S.C. § 1581(d)(l)-(3) (1999). Notably, 28 U.S.C. § 1581(d) does not mention \"agricultural commodity producers,!’ a recently created class of beneficiaries that includes Plaintiff. Rather, \"agricultural commodity producers” may challenge the USDA's eligibility determination by recourse to 19 U.S.C. § 2395(a), which allows such plaintiffs to challenge a \"determination of the Secretary of Agriculture under section 2401b of this title[J” 19 U.S.C. § 2395(a) (2005). Congress added the language in that statute dealing with agricultural commodity producers when it passed the Trade Act of 2002, see Pub.L. 107-210, 116 Stat. 933, 953 (2002). Therefore, the CIT has subject matter jurisdiction over USDA TAA cases under 19 U.S.C. § 2395, despite the absence of a corollary amendment to 28 U.S.C. § 1581(d) giving the CIT jurisdiction over eligibility disputes brought by agricultural commodity plaintiffs. . After surveying Plaintiffs summons, complaint, and response to Defendant’s motions, it is unclear whether Plaintiff ever presented the envelope to the USDA personnel reviewing the untimely application. If the USDA never saw the envelope, then it was not part of the agency record that the Court is currently reviewing. Because it makes no difference to the ultimate disposition of the Rule 56.1 motion, the Court will assume such evidence was available to the USDA personnel, and explain why even with such evidence, the USDA's actions are unassailable on judicial review." }, { "docid": "17283266", "title": "", "text": "Since eligibility for the adjustment assistance disbursed pursuant to 19 U.S.C. § 2401e is conditioned on an “adversely affected agricultural commodity producer” filing a TAA application within ninety days of the date of certification, see 19 U.S.C. § 2401e(a)(l), Plaintiffs application was received more than three months after the statutory ninety-day period had passed, and was untimely. The second prong, however, is contested. Equitable tolling, which allows courts to disregard non-compliance with statutes of limitations or deadlines under certain circumstances where equity demands, is presumptively available with respect to statutes of limitations for filing suits against the government. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Congress may at any time choose to preclude equitable tolling with respect to a statute, and render the statutory terms of its waiver of sovereign immunity exhaustive, but in such a case a defendant government agency must adduce evidence that such Congressional intent existed in order to rebut the presumption of availability. See United States v. Brockamp, 519 U.S. 347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (examining “Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?”); Irwin, 498 U.S. at 95, 111 S.Ct. 453. Defendant has produced no such evidence. Previous court decisions have repeatedly allowed equitable tolling in TAA cases. See, e.g., Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291, 1296-98 (Fed.Cir.2004) (holding sixty-day time limit for filing suit in labor TAA cases may be equitably tolled); Former Employees of Quality Fabricating, Inc. v. U.S. Sec. of Labor, 27 CIT-, -, 259 F.Supp.2d 1282, 1285-86 (2003) (equitably tolling the statute of limitations in TAA case where Department of Labor made misrepresentations to plaintiff about how she was to obtain notice of final determination); Former Employees of Siemens Info. Comm. Networks, Inc. v. Herman, 24 CIT 1201, 1208, 120 F.Supp.2d. 1107, 1113 (2000) (“Finally, the relevant legislative history fails to disclose any intent on the part of Congress to prohibit equitable tolling. Indeed, the remedial purpose of" }, { "docid": "20819546", "title": "", "text": "has repeatedly ignored the Court’s instructions to conduct a more thorough investigation. After three tries the record continues to be scant and Labor has once again failed to substantiate its conclusions. Thus, ordering another remand in this case would be futile.” Hawkins Oil, 17 CIT at 130, 814 F. Supp. at 1115. In this respect, this case strongly parallels Hawkins Oil. Ordering the Secretary to certify the Plaintiffs’ claims is within the court’s discretion. The court has declared that determinations based on inadequate investigations are not afforded deference. Former Employees of Gen. Elec. Corp. v. U.S. Department of Labor, 14 CIT 608 (1990); United Elec., Radio & Mach, Workers of Amer. v. Dole, 14 CIT 818 (1990). These cases make clear that although Labor has significant discretion in conducting trade adjustment assistance investigations, a reasonable inquiry is still a minimum requirement. Moreover, the court may order the Secretary to certify the entire plant. See United Elec., Radio and Machine Workers of Amer. v. Martin, 15 CIT 299, 308 (1991). Finally, 19 U.S.C. § 2395(c) states the ’’Court of International Trade shall have jurisdiction to affirm the action of the Secretary of Labor * * * or to set such action aside, in whole or in part.” Labor is the agency tasked with properly overseeing and addressing TAA and NAFTA TAA claims. When Labor is presented with a petition for trade adjustment assistance, it has an affirmative duly to investigate whether petitioners are members of a group which Congress intended to benefit from the legislation. Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F. Supp. 432, 435 (1987); Cherlin v. Donovan, 7 CIT 158, 162, 585 F. Supp. 644, 647 (1984). Labor’s inadequate efforts have failed to produce a determination that meets minimum legal standards. Having failed to conduct an adequate investigation after four opportunities, Labor will not receive another. The Secretary must certify the former employees in this case and grant their applications for TAA and NAFTA TAA. Unless otherwise specified, the summary of events prior to the Second Remand Determination are derived from the court’s opinion" }, { "docid": "20819521", "title": "", "text": "Plaintiffs’ claims for TAA and NAFTA TAA. For the reasons set forth below, the court grants the Plaintiffs motion to certify the Employees’ TAA and NAFTA TAA claims. Ill Jurisdiction and Standard of Review The court has jurisdiction under 28 U.S.C. § 1581(d) (1994). This case is governed by 19 U.S.C. § 2272 (1994) and 19 U.S.C. § 2395 (1994). 19 U.S.C. § 2272 provides for separated workers to petition for TAA. 19 U.S.C. § 2272 (1994). 19 U.S.C. § 2395 provides for the petitioning by displaced workers for NAFTA TAA and judicial review of Labor’s determination on such petitions. 19 U.S.C. § 2395 (1994). That section also provides that the court, “for good cause shown * * * may remand the case to [Labor] to take further evidence.” Id. “Good cause exists if the Secretary’s chosen methodology is so marred that his finding is arbitrary or of such a nature that it could not be based on substantial evi dence.” Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp 378, 381 (CIT 1989) (citations and internal punctuation omitted). “A negative determination by the Secretary of Labor denying certification of eligibility for [TAA] will be upheld if it is supported by substantial evidence on the record and is otherwise in accordance with law.” Former Employees of Swiss Indus. Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp 637, 639 (1993); see also 19 U.S.C. § 2395(b). Substantial evidence is something more than a “mere scintilla,” and must be enough evidence to reasonably support a conclusion. Primary Steel, Inc. v. United States, 17 CIT 1080, 1085, 834 F. Supp. 1374, 1380 (1993); Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed. Cir. 1987). The Supreme Court in Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206 (1938), stated that language within administrative statutes which relax the rules of evidence applicable to U.S. district courts is designed to “free administrative boards from the compulsion of technical rules so that" }, { "docid": "11897822", "title": "", "text": "Reg. 20180, P.R. Doc. No. 12 at 32 (“A petitioner . . . clarified that the subject firm created a custom-designed program for the customer’s financial department.”). Labor then determined that Plaintiffs’ firm did not produce an “article” within the meaning of the Act. Labor denied certification concluding that “[t]he functions performed at the subject firm relate to information technology services. These services are thus not tangible commodities, that is, marketable products, and are not listed in the Harmonized Tariff Schedule of the United States, which describes all articles imported to the United States.” Reconsideration Determination, 68 Fed. Reg. 20180. Relying on its interpretation of the Harmonized Tariff Schedule of the United States (HTSUS), 19 U.S.C. § 1202, Labor explained that “informational support that could historically be sent in letter form and that can currently be electronically transmitted are [sic] not listed in the HTS.” Id. Plaintiffs now challenge Labor’s determination regarding their eligibility for TAA before this court, specifically the finding that Plaintiffs’ firm did not produce “articles” within the meaning of the Act. Jurisdiction and Standard op Review This Court has exclusive jurisdiction over civil actions arising from “any final determination by the Secretary of Labor . . . with respect to the eligibility of workers for adjustment assistance.” 28 U.S.C. § 1581(d)(1) (2000). The Act provides for judicial review of Labor’s final determination denying certification of aggrieved workers’ eligibility for TAA. 19 U.S.C. § 2395(a) (West Supp. 2004). The agency’s factual findings, “if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary [of Labor] to take further evidence.” 19 U.S.C. § 2395(b). The relevant statutes do not, however, provide guidance as to the standard of review for Labor’s legal determinations. Former Employees of Murray Eng’g, Inc. v. United States Sec’y of Labor, 28 CIT_, Slip Op. 04-45, at 6 (May 4, 2004). This Court, therefore, considers whether Labor’s determination is “in accordance with law,” a default standard outlined in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See, e.g., Former Employees of Rohm &" }, { "docid": "20838482", "title": "", "text": "24 CIT at 655, 659, No. 98-03-00540, Slip Op. 00-88, 2000 Ct. Intl. Trade LEXIS 90, at *11 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983) (citations omitted)). Where “good cause [is] shown,” a case must be remanded for further investigation and analysis. See 19 U.S.C. § 2395(b) (1994); Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 640. III. Analysis As part of the NAFTA Implementation Act, lawmakers established a trade adjustment assistance program with two separate components, designed to provide benefits both for workers in firms “directly affected by imports from or shifts in production to Mexico or Canada” and for “workers in secondary firms that supply or assemble products produced by firms that are directly affected.” Statement of Administrative Action, H.R. Doc. No. 103-159, vol. 1 at 672, 674 (1993). The Roosevelt Workers petitioned for certification under both components of the program, which are addressed in turn below. A. Eligibility for Assistance to Workers in Directly Affected (“Primary”) Firms Under the NAFTA-TAA statute, as well as the TAA provisions of the Trade Act of 1974, workers in directly affected (“primary”) firms may be eligible for assistance either as “production workers” or as “support service workers.” 1. Eligibility as “Production Workers” Under the NAFTA-TAA statute, workers are to be certified as eligible for benefits if the Secretary of Labor determines that: * * * a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have be come totally or partially separated, or are threatened to become totally or partially separated, and either— (A) that— (i) the sales or production, or both, of such firm or subdivision have decreased absolutely, (ii) imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and (iii) the increase in imports under clause (ii) contributed importantly to such workers’ separation or threat of" }, { "docid": "20838481", "title": "", "text": "(1986), aff’d, 810 F.2d 1137 (1987)). And “[a]n assessment of the substantiality of record evidence must take into account whatever else in the record fairly detracts from its weight.” Former Employees of Swiss Indus. Abrasives v. United States, 19 CIT 649, 651 (1995) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (“Swiss Indus. Abrasives II”). Moreover, all rulings based on the agency’s findings of fact must be “in accordance with the statute and not * * * arbitrary and capricious”; to that end, “the law requires a showing of reasoned analysis.” Gen. Elec. Corp., 14 CIT at 611 (quoting Int’l Union v. Marshall, 584 F.2d at 396 n.26). In short, although it is clear that the scope of review here is narrow, and that a court is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Alcatel Telecomms., 24 CIT at 655, 659, No. 98-03-00540, Slip Op. 00-88, 2000 Ct. Intl. Trade LEXIS 90, at *11 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983) (citations omitted)). Where “good cause [is] shown,” a case must be remanded for further investigation and analysis. See 19 U.S.C. § 2395(b) (1994); Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 640. III. Analysis As part of the NAFTA Implementation Act, lawmakers established a trade adjustment assistance program with two separate components, designed to provide benefits both for workers in firms “directly affected by imports from or shifts in production to Mexico or Canada” and for “workers in secondary firms that supply or assemble products produced by firms that are directly affected.” Statement of Administrative Action, H.R. Doc. No. 103-159, vol. 1 at 672, 674 (1993). The Roosevelt Workers petitioned for certification under both components of the program," }, { "docid": "16668358", "title": "", "text": "CIT_,_, 219 F. Supp.2d 1283, 1285-86 (2002) (citation omitted). However, substantial evidence is more than a “mere scintilla”; it must be enough to reasonably support a conclusion. Id. at 1286 (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (1987)). And “[a]n assessment of the substantiality of record evidence must take into account whatever else in the record fairly detracts from its weight.” Former Employees of Swiss Indus. Abrasives v. United States, 19 CIT 649, 651 (1995) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (“Swiss Indus. Abrasives II\"). Moreover, all rulings based on the agency’s findings of fact must be “in accordance with the statute and not * * * arbitrary and capricious”; to that end, “the law requires a showing of reasoned analysis.” Gen’l Elec. Corp., 14 CIT at 611 (quoting Int'l Union v. Marshall, 584 F.2d at 396 n.26). In short, although it is clear that the scope of review here is narrow, and that a court is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Former Employees of Alcatel Telecomms. v. Herman, 24 CIT 655, 658-659, (quoting Motor Vehicle Mfrs. Assn’n v. State Farm Mut. Auto Ins., 463 U.S.29, 43, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983) (citations omitted)). Where “good cause [is] shown,” a case must be remanded for further investigation and analysis. See 19 U.S.C. § 2395(b) (1994); Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 640. III. Analysis As Chevron I observed, the Labor Department “has an affirmative duty ‘to conduct a factual inquiry into the nature of the work performed by the petitioners to determine whether it amounted to that of a service or that of production.’" }, { "docid": "9592619", "title": "", "text": "U.S.C. § 2272(a)(3) (1994). Defendant contends the Court’s finding either of these two arguments to be. supported by substantial evidence on the record provides sufficient grounds for the Court to uphold the Secretary’s determination that plaintiffs are not eligible for certification to receive trade adjustment assistance benefits. Standard of Review In reviewing determinations of the Department of Labor denying certification of eligibility to receive trade adjustment assistance benefits, this Court will sustain the Department’s determination when it is supported by substantial evidence on the record and is otherwise in accordance with law. See 19 U.S.C. § 2395(b)-(c) (1994); see also Former Employees of General Electric Corp. v. U.S. Department of Labor, 14 CIT 608, 611, 1990 WL 129488 (1990). “Substantial evidence has been held to be more than a ‘mere scintilla,’ but sufficient evidence to reasonably support a conclusion.” Former Employees of General Electric Corp., 14 CIT at 611 (citations omitted). In reviewing Labor’s determination, this Court will give deference “ ‘to the agency’s chosen [investigative] technique, only remanding a case if that technique is so marred that the Secretary’s finding is arbitrary or of such a nature that it could not be based on “substantial evidence.” ’ ” Former Employees of CSX Oil & Gas Corp. v. United States, 13 CIT 645, 651, 720 F.Supp. 1002, 1008 (1989) (quoting United Glass & Ceramic Workers of North America v. Marshall, 584 F.2d 398, 404-05 (D.C.Cir.1978) (footnote omitted)). Discussion In order for the Secretary of Labor to certify a group of workers to receive trade adjustment assistance benefits as provided for under Section 222 of the Trade Act of 1974, it must be determined: (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly" }, { "docid": "17283272", "title": "", "text": "Plaintiff further alleges that in March 2005, its representative contacted the relevant Farm Service Agency county office to inquire about its application. Assuming all Plaintiffs allegations as true, and drawing all favorable inferences from those facts, the Court finds that Plaintiff has stated a claim upon which relief may be granted. If a plaintiff may be entitled to equitable tolling when it files a defective pleading, or when it inappropriately files a motion for federal relief in state court, it would be inequitable to erect an insuperable bar to such relief in cases where a plaintiff addresses the correct forms to the correct recipient, mails them, but, through no fault of plaintiffs, the forms never arrive. Defendant’s motion to dismiss must therefore be denied. B. Judgment on the Agency Record As noted above, this ease presents an equitable tolling issue of first impression. Here, the relevant statutory deadline limits applicants’ access to TAA benefits, and has nothing to do with a plaintiffs ability to obtain judicial review. The deadline operates at the agency level. As such, the USDA has already considered the evidence in favor of equitable tolling at the agency level. The Court’s jurisdiction under 19 U.S.C. § 2395 is limited to judicial review of the “determination” that Plaintiff had filed its application out of time, and that equitable tolling was not appropriate in this case. In a TAA proceeding, this Court will uphold the USDA’s factual findings that are supported by “substantial evidence.” See 19 U.S.C. § 2395(b) (2005). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Because the USDA’s decision not to toll the statutory deadline appears to have rested on its determination that Plaintiff did not exercise due diligence in pursuing its rights, the challenged “determination,” 19 U.S.C. § 2395(a), is a “factual finding” that will be upheld if “substantial evidence” underlies it, id. § 2395(b). See Former Employees of Siemens, 24 CIT at 1208, 120 F.Supp.2d at 1114 (“Whether" }, { "docid": "10792492", "title": "", "text": "Labor again contacted Leland for additional information regarding whether the gaugers supported crude oil production by Marathon Oil. Supplemental A.R. at 5. The investigation on remand revealed that in 1997,1998 and through March of 1999, Marathon Ashland Pipe Line did not transport via pipeline any articles produced by the parent company, Marathon Oil Company, Inc. See Supplemental A.R. at 6. The Secretary’s investigation found that in 1997, the parent company purchased crude oil at the Illinois Basin that was transported by Marathon Pipe Line Company. Id. “In 1998, Marathon Ashland Petroleum LLC was formed and it purchased crude from the Basin which it transported via the pipeline.” Id. In 1999, Marathon Ash-land Petroleum LLC did not purchase from the lease (Illinois Basin). See id. On these findings, the Secretary affirmed her original notice of negative determination of eligibility to apply for TAA benefits for the former workers of Marathon Ashland Pipe Line, LLC. III. Standard of Review Cases contesting the denial of trade adjustment assistance filed under 28 U.S.C. § 1581(d) must be upheld if the Department of Labor’s determination is supported by substantial evidence and is otherwise in accordance with law. See 19 U.S.C. § 2395(b); Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983), aff’d, 737 F.2d 1575 (Fed. Cir. 1984). The factual findings of the Secretary must be accepted if supported by “substantial evidence.” “Substantial evidence has been held to be more than a ‘mere scintilla,’ but sufficient enough to reasonably support a conclusion.” Former Employees of Swiss Industrial Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp. 637, 639-40 (1993) (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987)). “Additionally, ‘the rulings made on the basis of those findings [must] be in accordance with the statute and not be arbitrary and capricious, and for this purpose the law requires a showing of reasoned analysis.’” Former Employees of General Electric Corp. v. U.S Dep’t of Labor, 14 CIT 608, 610-11 (1990) (quoting International Union v. Marshall," }, { "docid": "20790314", "title": "", "text": "and, if so, whether he had timely notified the defendant thereof, as is required by section 2331(b)(2)(A). In any event, their interchange was followed by defendant’s Consent Motion for Remand to the Department of Labor for Reconsideration, which was granted. The results of that remand have been filed herein, and the plaintiffs present a formal response. Defendant’s reply thereto prays for judicial affirmance of its negative determination(s) of eligibility for adjustment assistance and for dismissal of this action. The court’s jurisdiction to grant such relief is pursuant to 19 U.S.C. §2395 and 28 U.S.C. §§ 1581(d)(1), 2631(d)(1). II Under the Trade Act of 1974, as amended, the Secretary of Labor shall certify workers as eligible to apply for adjustment assistance if she determines (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. §2272(a). Subsection 2272(b)(1) defines “contributed importantly” to mean “a cause which is important but not necessarily more important than any other cause.” On this statute’s face, and as reaffirmed by the courts, all three of the foregoing requirements must be satisfied by petitioners for assistance. See, e.g., Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. United States, 22 CIT 712, 713, 20 F.Supp.2d 1288, 1290 (1998). In reviewing ETA determinations, the findings of fact by the Secretary of Labor * * *, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary to take further evidence * * *. 19 U.S.C. §2395(b). See 28 U.S.C. §2640(c). See also Former Employees of Shaw Pipe, Inc. v." }, { "docid": "11897823", "title": "", "text": "Jurisdiction and Standard op Review This Court has exclusive jurisdiction over civil actions arising from “any final determination by the Secretary of Labor . . . with respect to the eligibility of workers for adjustment assistance.” 28 U.S.C. § 1581(d)(1) (2000). The Act provides for judicial review of Labor’s final determination denying certification of aggrieved workers’ eligibility for TAA. 19 U.S.C. § 2395(a) (West Supp. 2004). The agency’s factual findings, “if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary [of Labor] to take further evidence.” 19 U.S.C. § 2395(b). The relevant statutes do not, however, provide guidance as to the standard of review for Labor’s legal determinations. Former Employees of Murray Eng’g, Inc. v. United States Sec’y of Labor, 28 CIT_, Slip Op. 04-45, at 6 (May 4, 2004). This Court, therefore, considers whether Labor’s determination is “in accordance with law,” a default standard outlined in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See, e.g., Former Employees of Rohm & Haas Co. v. Chao, 27 CIT_, 246 F. Supp. 2d 1339, 1346 (2003); Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983); see also Alaska Dep’t of Envtl. Conservation v. E.P.A., 124 S. Ct. 983, 1006, 540 U.S. 461, _(2004) (“Because the [relevant] Act itself does not specify a standard of judicial review in this instance, we apply the familiar default standard of the [APA].”). The APA requires federal courts to set aside an agency action that is not in accordance with any law, “not merely those laws that the agency itself is charged with administering.” F.C.C. v. NextWave Pers. Communications Inc., 537 U.S. 293, 300 (2003). In this case, Labor made a legal determination based on its interpretation of the terms of the HTSUS. While Congress has granted Labor the authority to “prescribe such regulations as may be necessary to carry out the provisions” of the Act, 19 U.S.C. § 2320, Labor has not promulgated any regulations explicating the meaning of the term “article” for purposes of TAA. See 29" }, { "docid": "17283275", "title": "", "text": "an applicant presents. Indeed, to rule otherwise would open a loophole in the TAA regime whereby any applicant that allows the ninety-day time period to lapse could, provided it produces a similar photocopied envelope, obtain access to guaranteed benefits at a later date. The current ruling recognizes that postal errors do, on occasion, occur, but also encourages future applicants to document those errors by sending their applications via certified or registered mail. Defendant’s motion for judgment on the agency record is granted. III. CONCLUSIONS For the foregoing reasons, Defendant’s motion to dismiss is denied, and Defendant’s motion for judgment on the agency record is granted. An order will be issued dismissing Plaintiffs case. . The envelope at issue is addressed from GSA to Stewart Sadler, Plaintiff's shareholder. The Court presumes that the envelope contained GSA’s notification to Plaintiff of the recertification, as well as an application form. Plaintiff did not introduce a copy of the envelope it used to mail its application to the USDA. . Plaintiff's invocation of 28 U.S.C. § 1581(d) is misplaced. That section grants the U.S. Court of International Trade (“CIT'') jurisdiction of disputes over certain plaintiffs' “eligibility'' for TAA benefits. See 28 U.S.C. § 1581(d)(l)-(3) (1999). Notably, 28 U.S.C. § 1581(d) does not mention \"agricultural commodity producers,!’ a recently created class of beneficiaries that includes Plaintiff. Rather, \"agricultural commodity producers” may challenge the USDA's eligibility determination by recourse to 19 U.S.C. § 2395(a), which allows such plaintiffs to challenge a \"determination of the Secretary of Agriculture under section 2401b of this title[J” 19 U.S.C. § 2395(a) (2005). Congress added the language in that statute dealing with agricultural commodity producers when it passed the Trade Act of 2002, see Pub.L. 107-210, 116 Stat. 933, 953 (2002). Therefore, the CIT has subject matter jurisdiction over USDA TAA cases under 19 U.S.C. § 2395, despite the absence of a corollary amendment to 28 U.S.C. § 1581(d) giving the CIT jurisdiction over eligibility disputes brought by agricultural commodity plaintiffs. . After surveying Plaintiffs summons, complaint, and response to Defendant’s motions, it is unclear whether Plaintiff ever presented the envelope" }, { "docid": "10792495", "title": "", "text": "Supp 378, 381 (1989). However, in evaluating the evidence underlying the Secretary’s conclusions, the court may consider only the administrative record before it. See 28 U.S.C. § 2640(c) (1994); International Union v. Reich, 22 CIT 712, 716, 20 F. Supp. 2d 1288, 1292 (1998). IV Discussion Pursuant to 19 U.S.C. § 2272 (1994) for workers to be certified for trade adjustment assistance the Secretary of Labor must determine: (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that the sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. § 2272(a). To receive trade adjustment assistance benefits, Plaintiffs must satisfy all three eligibility requirements of the statute. See Former Employees of Keinerts, Inc. v. Herman, 23 CIT 647, 648, 74 F. Supp. 2d 1280, 1282 (1999); Former Employees of Bass Enter. Prod. Co. v. United States, 13 CIT 68, 70, 706 F. Supp. 897, 900 (1989); Abbott v. Donovan, 8 CIT 237, 239, 596 F. Supp. 472, 474 (1984) (stating that a court must deny certification if any one of the three statutory conditions does not exist). At issue in this case is whether there is substantial evidence in the administrative record to support the Secretary’s determination that the workers of Marathon Ashland Pipe Line LLC, in Bridgeport, Illinois, are ineligible to apply for adjustment assistance benefits. The Secretary issued a negative determination asserting that Marathon Ashland workers failed to satisfy the two requirements within 19 U.S.C. § 2272(a)(3): first, the section requires that Plaintiffs must be workers of a firm or an appropriate subdivision of a firm that “produce[s]” articles; second, that in order for Plaintiffs to be eligible for trade adjustment assistance" }, { "docid": "18669375", "title": "", "text": "Merrow customers who may have switched to foreign-made machinery because such customer shifts would relate to earlier employment displacements, not the instant displacements. Standard of Review A negative determination by the Secretary of Labor denying certification of eligibility for trade adjustment assistance will be upheld if it is supported by substantial evidence on the record and is otherwise in accordance with law. See Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983), aff’d sub nom. Woodrum v. United States, 2 Fed. Cir. (T) 82, 737 F.2d 1575 (1984). The findings of fact by the Secretary are conclusive if supported by substantial evidence. 19 U.S.C. § 2395(b). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana) S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). Discussion The Department of Labor must follow the requirements of 19 U.S.C. § 2272 when determining whether a group of workers is eligible for trade adjustment assistance benefits. The relevant portion of the statute provides as follows: (a) The Secretary shall certify a group of workers (including workers in any agricultural firm or subdivision of an agricultural firm) as eligible to apply for adjustment assistance under this part if he determines— (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. § 2272(a) (1988). Employees must meet all three statutory criteria to be certified as eligible for trade adjustment assistance. The supplemental administrative record reflects a decrease in" }, { "docid": "16668359", "title": "", "text": "is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Former Employees of Alcatel Telecomms. v. Herman, 24 CIT 655, 658-659, (quoting Motor Vehicle Mfrs. Assn’n v. State Farm Mut. Auto Ins., 463 U.S.29, 43, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983) (citations omitted)). Where “good cause [is] shown,” a case must be remanded for further investigation and analysis. See 19 U.S.C. § 2395(b) (1994); Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 640. III. Analysis As Chevron I observed, the Labor Department “has an affirmative duty ‘to conduct a factual inquiry into the nature of the work performed by the petitioners to determine whether it amounted to that of a service or that of production.’ ” Chevron I, 26 CIT at_, 245 F. Supp.2d at 1327-28 (quoting Former Employees of Shot Point Servs. v. United States, 17 CIT 502, 507 (1993)). Moreover, more generally, “the agency ‘has an affirmative duty to investigate whether petitioners are members of a group which Congress intended to benefit’ from trade adjustment assistance legislation.” Id. at 1328 (citing Former Employees of Hawkins Oil & Gas Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 129, 814 F. Supp. 1111, 1114 (1993) ). The remand results filed with the Court reveal that the Labor Department has, once again, failed to properly discharge those duties. As Chevron I explained, the NAFTA-TAA program includes two separate components, providing benefits both for workers in firms “directly affected by imports from * * * Canada” and for “workers in secondary firms that supply or assemble products by firms that are directly affected.” 26 CIT at__, 245 F. Supp. 2d at 1322-23 (quoting Statement of Administrative Action, H.R. Doc. No. 103-159, vol. 1 at 672, 674 (1993)). The Labor Department’s remand" } ]

[ { "docid": "22605432", "title": "", "text": "step in our inquiry. This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Carey v. Brown, 447 U. S. 455, 462-463, and n. 7 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972). On the other hand, so-called “content-neutral” time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 807 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 647-648 (1981). At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council’s “predominate concerns” were with the secondary effects of adult theaters, and not with the content of adult films themselves. App. to Juris. Statement 31a (emphasis added). But the Court of Appeals, relying on its decision in Tovar v. Billmeyer, 721 F. 2d 1260, 1266 (CA9 1983), held that this was not enough to sustain the ordinance. According to the Court of Appeals, if “a motivating factor” in enacting the ordinance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s decision. 748 F. 2d, at 537 (emphasis in original). This view of the law was rejected in United States v. O’Brien, 391 U. S., at 382-386, the very" } ]

[ { "docid": "1759163", "title": "", "text": "23, 1996, Justice Marylin G. Diamond of the New York County Supreme Court granted defendants’ motion for summary judgment on plaintiffs’ state constitutional claims. Stringfellow’s of New York, Ltd. v. City of New York, 171 Misc.2d 376, 653 N.Y.S.2d 801 (N.Y.Sup.1996), aff'd, 241 A.D.2d 360, 663 N.Y.S.2d 812 (1st Dep’t 1997), aff'd, 91 N.Y.2d 382, 694 N.E.2d 407, 671 N.Y.S.2d 406 (1998). Justice Diamond found that the Amended Zoning Resolution was not an attempt to regulate speech but rather was motivated by concerns other than those related to speech, and, in particular, by a reasonable belief that adult establishments produce undesirable secondary effects such as neighborhood deterioration, crime and decreased property values. Justice Diamond found that, in enacting the Amended Zoning Resolution, the City reasonably relied on a number of studies undertaken in New York City and elsewhere concerning the secondary effects of adult establishments. She also found that the Amended Zoning Resolution is no broader.than is necessary to address the negative effects associated with adult establishments. Finally, Justice Diamond found that the Amended Zoning Resolution provides ample space for adult establishments, leaving almost 4% of New York City’s total land-area available for use by such establishments. She stated that defendants had “more than sufficiently demonstrated that the permissible areas are suitable for commercial enterprise and are large enough to accommodate adult establishments which must relocate. While plaintiff’s have labored mightily to create issues of fact, none exist.” Id. 653 N.Y.S.2d at 814. This conclusion was based in part on the specific analysis provided in the affidavit of William Bernstein, First Deputy Executive Director of the Department of City Planning, and other affidavits submitted by the defendants, who represented that approximately 500 potential relocation sites existed in New York City. She also considered McLaughlin’s affidavit, which concluded that the actual number of available alternative sites was much smaller than the 500 or so claimed by the defendants. Justice Diamond found that McLaughlin’s methodology was “fatally flawed” because it unjustifiably eliminated a number of sites based on factors that McLaughlin claimed make certain sites unavailable. Id. at 812. These factors included" }, { "docid": "10732760", "title": "", "text": "receipt and communication of information through the Internet is consistent with both. Because the Policy at issue limits the receipt and communication of information through the Internet based on the content of that information, it is subject to a strict scrutiny analysis and will only survive if it is “necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.” Perry, 460 U.S. at 45, 103 S.Ct. 948 (citing Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)). C. Renton/Time, Place, and Manner Defendant also argues in the alternative that the strict scrutiny standard should not apply because the Policy is more appropriately viewed as a time, place, and manner restriction pursuant to City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), than as a traditional content-based restriction on speech. Plaintiffs respond that this analysis is inapplicable to the Policy, which is designed to address the primary effects of Internet speech and which defendant admits restricts speech based on content. In Renton, the Supreme Court found that a zoning ordinance prohibiting adult movie theaters from locating within 1000 feet of residential neighborhoods, churches, and specific other structures was a content-neutral time, place, and manner restriction because it could be justified without reference to the content of the speech in the theaters. The city justified the ordinance as necessary to address the secondary effects of adult theaters in certain neighborhoods, namely preventing crime, protecting retail trade, maintaining property values, and preserving the quality of the neighborhoods, districts, and life. See id. at 48,106 S.Ct. 925. The Court found that none of these secondary effects were related to the content of the movies shown at the theaters. Therefore, the Court found the ordinance to be constitutional. See id. at 54, 106 S.Ct. 925. In a subsequent decision clarifying what it meant by “secondary effects,” the Supreme Court held that “[rjegulations that focus on ... [listeners’ reactions to speech are not the type of ‘secondary effects’ we referred to in Renton.” Boos v. Barry, 485" }, { "docid": "6141892", "title": "", "text": "way.” Graff, 9 F.3d at 1326. Accordingly, the court concludes that the ordinance, cured of the flaws described in Section III.3, is narrowly tailored to achieve the City’s legitimate purposes. Moreover, plaintiffs’ equal protection claim adds little to their First Amendment claim, since the analytical basis of the two tests is similar. Under the First Amendment, a content-neutral regulation that restricts the time, place, and manner of protected speech is constitutionally acceptable, provided that it is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Bery v. City of New York, 97 F.3d 689, 697 (2d Cir.1996). Under the Equal Protection Clause, the Supreme Court has stated that: “[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). Under either test, a showing of a substantial state interest and narrow tailoring must be made to vindicate the ordinance. Because the First Amendment test also imposes a requirement that there be “ample alternative channels of communication” open to speakers, the First Amendment analysis is more stringent than the Equal Protection analysis, and, in most circumstances, a content-neutral ordinance that can withstand scrutiny under the First Amendment is not vulnerable to an Equal Protection challenge. As the Sixth Circuit recently said in a similar case, “the Equal Protection Clause adds nothing to the First Amendment analysis; if a sufficient rationale exists for the ordinance under the First Amendment, then the City has demonstrated a rational basis for the alleged disparate treatment under the Equal Protection Clause.” DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 411 n. 7 (6th Cir.1997) (citing Renton, 475 U.S. at 55" }, { "docid": "1759162", "title": "", "text": "In support of summary judgment, defendants submitted a number of affidavits and virtually the entire legislative record of the Amended Zoning Resolution, including various studies and reports on adult businesses, the records of public hearings related to the Amended Zoning Resolution, and maps purporting to show permissible locations for the operation of adult establishments under the law. In opposition to the defendants’ motion, plaintiffs submitted numerous affidavits and legal memoranda, including an extensive affidavit from a land use expert, R. Bruce McLaughlin. McLaughlin’s affidavit addressed the availability of alternative sites for the businesses required by the Amended Zoning Resolution to close or relocate. It appears from McLaughlin’s affidavit that he had been studying the matter for many months. According to the affidavit, McLaughlin personally visited every one of the more than 500 sites identified by the defendants as available for adult establishments. Moreover, documents attached to the affidavit included an analysis prepared in August 1995, while the Amended Zoning Resolution was under consideration and approximately one year before defendants moved for summary judgment. On October 23, 1996, Justice Marylin G. Diamond of the New York County Supreme Court granted defendants’ motion for summary judgment on plaintiffs’ state constitutional claims. Stringfellow’s of New York, Ltd. v. City of New York, 171 Misc.2d 376, 653 N.Y.S.2d 801 (N.Y.Sup.1996), aff'd, 241 A.D.2d 360, 663 N.Y.S.2d 812 (1st Dep’t 1997), aff'd, 91 N.Y.2d 382, 694 N.E.2d 407, 671 N.Y.S.2d 406 (1998). Justice Diamond found that the Amended Zoning Resolution was not an attempt to regulate speech but rather was motivated by concerns other than those related to speech, and, in particular, by a reasonable belief that adult establishments produce undesirable secondary effects such as neighborhood deterioration, crime and decreased property values. Justice Diamond found that, in enacting the Amended Zoning Resolution, the City reasonably relied on a number of studies undertaken in New York City and elsewhere concerning the secondary effects of adult establishments. She also found that the Amended Zoning Resolution is no broader.than is necessary to address the negative effects associated with adult establishments. Finally, Justice Diamond found that the Amended Zoning" }, { "docid": "13853103", "title": "", "text": "fate will depend on whether it is content neutral. If the ordinance is content-neutral then it must be narrowly drawn to serve a significant government interest, and it must leave open “ample alternative channels of communication.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2132-33, 80 L.Ed.2d 772 (1984); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 (1981). If the ordinance is not content-neutral, then the government must meet a stricter test; it “must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983); Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980); Sturm v. Clark, 835 F.2d 1009, 1015 (3d Cir.1988). The Ordinance is not content-neutral. Matthews, 764 F.2d at 59-60. It bans all signs in residential districts except for temporary signs containing one of the following messages: “for sale” or “garage sale.” LPZO § 404.3. Thus the Ordinance “presumptively violate[s] the First Amendment,” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986), and it cannot stand unless we find a compelling interest and a very close means/ends fit. Sturm, 835 F.2d at 1015. Moreover, the entire universe of signs that are likely to end up on residential front lawns probably contains few items other than temporary real estate signs, “garage sale” signs and political signs. Thus by expressly permitting the former two categories and not the latter, § 404.3 is not only content-based, but it also — whether intentionally or not — effectively singles out for discrimination a most important category of protected expression: political speech. “The law impacts more heavily on ideological than on commercial speech — a peculiar inversion of First Amendment values.... [T]he statute’s impositions are both legally and practically the most burdensome on ideological speech, where they should be the" }, { "docid": "16859013", "title": "", "text": "that § 1738 “embodies the view that it is more important to give full faith and credit to state-court judgments than to ensure separate forums for federal and state claims”); see generally Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (“A fundamental precept of common-law adjudication, embod ied in the related doctrines of collateral es-toppel and res judicata, is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies _’ ”) (quoting Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 42 L.Ed. 355 (1897) (ellipses in original)). New York law provides that an issue may not be relitigated if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action. See, e.g., In re Sokol, 113 F.3d 303, 306 (2d Cir.1997); Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984). We agree with the district court that the issues decided and the standards applied by the New York state courts in rejecting plaintiffs’ state constitutional challenge are the same that would be applicable to plaintiffs’ First Amendment claim. Under both the federal and state Constitutions, the Zoning Amendment must: (1) be “content neutral,” in the sense that it is aimed not at the restricted speech itself but at the negative secondary consequences that flow from it; (2) serve substantial government interests and be no broader than necessary to serve these interests; and (3) leave open reasonable alternative avenues of communication. Compare City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), with Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). The New York Court of Appeals unanimously held that" }, { "docid": "16232501", "title": "", "text": "“reasonable belief standard.” Id. “Common experience” can support a time, place and manner regulation, Alameda Books, 122 S.Ct. at 1743 (Justice Kennedy concurring in the judgment). Furthermore, this court has found no federal case which bars reliance on anecdotal evidence. In Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998) , the New York Court of Appeals affirmed the decision of a lower court upholding New York City’s adult zoning ordinance. In doing so, it stated: Contrary to plaintiffs’ contentions, the “non-empirical,” anecdotal evidence that comprised the bulk of the local studies does not render those studies worthless. In the proper context, anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects [citing Renton, 475 U.S. at 44, 106 S.Ct. 925 and ILQ Investments, 25 F.3d at 1416-17], particularly where, as here, the nonempirical information is extensive and indicative of a clear relationship between adult uses and urban decay. 694 N.E.2d at 417. McLaughlin’s empirical study focuses on blight, crime, and property values (Vol. 1 at pp. 100-115), but that does not tell the entire story about adverse secondary effects of adult establishments. Spokane only needs “some” evidence to support its Ordinances and this need not be empirical evidence. Spokane’s legislative record (excerpts attached to Declaration of Tim Szambelan) is filled with complaints from neighbors of adult establishments concerning pornographic litter and used condoms in their neighborhoods and sexual acts occurring on or near the adult establishments. See Renton Declaration (SPO 000958), Lindell Declaration (SPO 000964), Walker Declaration (SPO 000980-001003), Citizen Complaints (SPO 001060-001087), Spokane City Council Meeting (SPO 001433), Plan Commission Minutes (SPO 001474), Plan Commission Minutes (SPO 001511), and City Council Transcript (001561). Indeed, even McLaughlin cannot so easily dismiss the problem of pornographic litter. (See Section 4.1 of Volume III “Supplement” and McLaughlin’s deposition at pp. 25, 29, 30, 55, 57-58 attached as Ex. A to Second Declaration of Stephen A.-Smith). The elimination of pornographic litter, by itself, represents a substantial governmental" }, { "docid": "18020177", "title": "", "text": "because it has shown a likelihood of success as to whether the Adult Ordinance, as amended, impermissi-bly infringes upon its First Amendment rights, thereby causing irreparable harm. Moreover, plaintiff argues that the limited record in this case raises sufficiently serious and difficult questions which “call for more deliberate investigation.” Bukaka, Inc. v. County of Benton, 852 F.Supp. 807, 811 (D.Minn.1993). It is a well-recognized principle of law that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Additionally, the questions raised in this case, which consider the extent to which the government may legally infringe upon individual rights, are of a serious and important nature, especially when considered in light of the compelling “public interest in uphold[ing][the] First Amendment rights guaranteed by the Constitution.” Playboy Enterprises, Inc. v. Meese, 639 F.Supp. 581, 587 (D.D.C.1986). Because plaintiff has shown a likelihood that the Adult Ordinance violates its First Amendment rights, and also because plaintiff has shown a serious and immediate threat of irreparable harm if enforcement of the Adult Ordinance is not enjoined, plaintiff is entitled to a preliminary injunction preventing the City’s enforcement of the Adult Ordinance against it. See, e.g., Tunick v. Safir, 228 F.3d 135, 137 (2d Cir. 2000); Huminski, 221 F.3d at 360-61. A. First Amendment Violation In order to survive Constitutional scrutiny, a zoning ordinance restricting the location of adult oriented businesses must be content neutral. See, e.g., Hickerson v. City of New York, 146 F.3d 99, 104 (2d Cir.1998); Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 397, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). In other words, the zoning ordinance must be promulgated in order to control “the [adverse] secondary effects such as crime, deterioration of retail trade, and decrease in property values,” rather than “out of mere distaste” for the message communicated by the adult oriented business. Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1257 (5th Cir.1992). Plaintiff argues that the record" }, { "docid": "1759169", "title": "", "text": "place, and manner regulations if the legislative purpose is other than the restriction of speech. According to Renton, such a content neutral ordinance is permissible if it is “designed to serve a substantial governmental interest” and “allows for reasonable alternative avenues of communication.” Id., 475 U.S. at 50. Each of the inquiries set out by the Supreme Court in Renton —the legislative purpose, whether the ordinance is designed to advance a substantial government interest, and the availability of reasonable alternative avenues of communication — is a factual issue that has been litigated by plaintiffs and decided by the Supreme Court for New York County and affirmed by both the Appellate Division and the New York Court of Appeals. After extensive submissions by the parties, Justice Diamond held that (1) the City acted in response to concerns regarding the secondary effects of adult establishments; (2) the City reasonably relied on a number of studies to conclude that adult businesses produce adverse secondary effects; (3) the Amended Zoning Resolution is “no broader than necessary” to prevent those adverse effects; and (4) defendants had “more than sufficiently demonstrated that the permissible areas” for adult establishments remaining in the City “are suitable for commercial enterprise and are large enough to accommodate adult establishments which must relocate.” 653 N.Y.S.2d at 803, 808, 809, 814. Each of those inquiries was necessarily decided in the state court proceedings, and plaintiffs had a full and fair opportunity to litigate the issues in the state courts. Accordingly, if the doctrine applies, those issues are precluded from further litigation in this Court under the doctrine of collateral estoppel, now known as issue preclusion. Plaintiffs offer no persuasive reason to be permitted to relitigate in this Court the very same issues they litigated in the state courts in order to persuade this Court to reach a different factual result. Plaintiffs contend that under England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), they reserved their rights to relitigate these issues in federal court. The England case preserves a plaintiff’s right to relitigate" }, { "docid": "18020178", "title": "", "text": "shown a serious and immediate threat of irreparable harm if enforcement of the Adult Ordinance is not enjoined, plaintiff is entitled to a preliminary injunction preventing the City’s enforcement of the Adult Ordinance against it. See, e.g., Tunick v. Safir, 228 F.3d 135, 137 (2d Cir. 2000); Huminski, 221 F.3d at 360-61. A. First Amendment Violation In order to survive Constitutional scrutiny, a zoning ordinance restricting the location of adult oriented businesses must be content neutral. See, e.g., Hickerson v. City of New York, 146 F.3d 99, 104 (2d Cir.1998); Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 397, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). In other words, the zoning ordinance must be promulgated in order to control “the [adverse] secondary effects such as crime, deterioration of retail trade, and decrease in property values,” rather than “out of mere distaste” for the message communicated by the adult oriented business. Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1257 (5th Cir.1992). Plaintiff argues that the record is utterly devoid of any factual basis to justify either the 1999 Amendment or the 2000 Amendment, and that therefore it simply cannot be said that the Adult Ordinance was amended to control the “secondary effects” of adult businesses. Because there is no such correlation, plaintiff asserts that there is a substantial likelihood that the Adult Ordinance cannot survive scrutiny as a reasonable time, place, and manner restriction under O’Brien. Plaintiff is correct. While it is true that “the [Supreme] Court has not required that a municipality conduct new studies or produce evidence independent of that generated by other cities or towns, so long as whatever evidence the municipality relied upon is reasonably believed to be relevant to the problem sought to be addressed”, Renton, 475 U.S. at 49-50, 106 S.Ct. 925, there must be some reasonable nexus between evidence relied upon by the City and the problem allegedly addressed by the amended Ordinance. See, e.g., N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp.2d 754, 778 (S.D.Tex.1998) (“[I]n order for an ordinance based on" }, { "docid": "18020175", "title": "", "text": "appeals, plaintiff was permitted to continue operating its businesses at the current locations until June 13, 2001. To date, plaintiffs adult businesses remain in operation at the disputed locations. III. STANDARD OF REVIEW A. Preliminary Injunction In order to grant a preliminary injunction maintaining the status quo under a zoning ordinance, a court must find that (1) the plaintiff is at risk of imminent irreparable harm; and (2) the plaintiff has demonstrated either a likelihood of success on the merits or “sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168, 173 (2d Cir.2000). When the party seeks a preliminary injunction to protect a constitutional right, however, courts generally do not require a showing of irreparable harm. See, e.g., Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991) (when deprivation of rights derives from allegations of a First Amendment violation, irreparable harm presumptively exists); Huminski v. Rutland City Police Dept., 221 F.3d 357, 360-61 (2d Cir.2000). B. First Amendment Time, place, and manner regulations of activities protected by the First Amendment are able to survive scrutiny under the United States Constitution only if they: (1) are “content neutral,” in that they do not attempt to regulate speech because of its subject matter, message, or ideas, but rather in an effort to control adverse “secondary effects”, such as crime, deterioration of neighborhoods, and decreases in property values; (2) are designed to advance a substantial government interest; and (3) leave open adequate alternative means of communication. See United, States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); 751 Orange Ave. Inc. v. City of West Haven, 761 F.2d 105, 111-12 (2d Cir.1985). Regulations promulgated in order to restrict speech based on its content presumptively violate the First Amendment. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). IV. DISCUSSION Plaintiff contends that a preliminary injunction should issue" }, { "docid": "16267161", "title": "", "text": "that the Ordinances promoted a substantial governmental interest, the district court stressed that Spokane only needed “ ‘some’ evidence to support its Ordinances,” and correctly concluded that the “elimination of pornographic litter, by itself, represents a substantial governmental interest, especially as concerns protection of minors.” World Wide Video, 227 F.Supp.2d at 1157-58. The citizen testimony concerning pornographic litter and public lewdness, standing alone, was sufficient to satisfy the “very little” evidence standard of Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J., concurring) (citing Renton, 475 U.S. at 51-52, 106 S.Ct. 925). Accord Maricopa County, 336 F.3d at 1168; cf. Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382, 400, 671 N.Y.S.2d 406, 694 N.E.2d 407, 417 (N.Y.1998) (“[A]necdotal evidence and reported experience can be as telling as sta tistical data and can serve as a legitimate basis for finding negative secondary effects .... ”). The relevant question is “whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance.” Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728 (plurality opinion). Here, the protected speech and the secondary effects described in the citizen testimony are inexorably intertwined: the sexual images in the magazines and on the packaging of the videos sold by adult stores may be protected, but if the stores’ products are consistently discarded on public ground, municipal regulation may be — and, in this case, is — justified. Our conclusion concerning the nature of the post-Alameda Books evidentiary burden is in line with the weight of federal authority. For example, in SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir.), cert. denied, — U.S. —, 124 S.Ct. 104, 157 L.Ed.2d 38 (2003), the Eighth Circuit noted that the adult business’s evidence in opposition to Benton County’s zoning regulations addressed only two adverse secondary effects, property values and crime in the vicinity of an adult entertainment estáb-lishment.... [The challenged ordinance], on the other hand, may address other adverse secondary effects, such as the likelihood that an establishment whose" }, { "docid": "16859014", "title": "", "text": "Sokol, 113 F.3d 303, 306 (2d Cir.1997); Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984). We agree with the district court that the issues decided and the standards applied by the New York state courts in rejecting plaintiffs’ state constitutional challenge are the same that would be applicable to plaintiffs’ First Amendment claim. Under both the federal and state Constitutions, the Zoning Amendment must: (1) be “content neutral,” in the sense that it is aimed not at the restricted speech itself but at the negative secondary consequences that flow from it; (2) serve substantial government interests and be no broader than necessary to serve these interests; and (3) leave open reasonable alternative avenues of communication. Compare City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), with Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). The New York Court of Appeals unanimously held that the Zoning Amendment met these standards — just as this Court in Buzzetti found the Zoning Amendment constitutionally unobjectionable on the record then before us — and this determination is equally dispositive of plaintiffs’ claim under the First Amendment. Cf. Kremer v. Chemical Construction Corp., 456 U.S. 461, 479-80, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (holding, in Title VII ease, that “[although the claims presented to the NYHRD [New York State Division of Human Rights] and subsequently reviewed by the Appellate Division were necessarily based on New York law, the alleged discriminatory acts are prohibited by both federal and state laws. The elements of a successful employment discrimination claim are virtually identical; petitioner could not succeed on a Title VII claim consistently with the judgment of the NYHRD that there is no reason to believe he was terminated or not rehired because of age or religion. The Appellate Division’s affir-mance of the NYHRD’s dismissal necessarily decided that petitioner’s claim under New York law was meritless, and thus it also decided that a Title VII" }, { "docid": "16232481", "title": "", "text": "conduct associated within these facilities.” The findings make it equally clear that the intent of the Ordinance is not “to suppress any speech activities protected by the First Amendment to the United States Constitution, or Article 1, Section^ 5 of the Washington State Constitution, but to propose content neutral legislation which addresses the negative secondary impacts of adult retail use establishments.” (See Legislative Record, SP0001480 et seq., attached to Declaration of Tim Szambelan). Like the adult retad business in Z.J. Gifts, plaintiff World Wide Video contends that persons testifying in support of the Spokane Ordinances were biased against adult businesses and motivated by their objections to the speech itself, not the purported secondary effects. As the Tenth Circuit observed in Z.J. Gifts, however, alleged illicit motives hidden in comments will not support a determination that a restriction is content based. Id. at 687, citing Renton, 475 U.S. at 48, 106 S.Ct. 925. The actual motives of those who enact an ordinance are irrelevant to First Amendment analysis. In analyzing whether an ordinance violates the First Amendment, the court does not ask whether the motives of a municipal board or council can be justified as content-neutral time, place, and manner restrictions, but rather whether the ordinance itself can be so justified. DiMa Corp. v. Town of Hallie, 185 F.3d 823, 828-29 (7th Cir.1999). “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” U.S. v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Based on the foregoing authorities and its examination of Spokane’s Ordinances, this court finds those Ordinances are content neutral. Accordingly, they are subject to “intermediate scrutiny” and therefore, must be narrowly tailored to serve a substantial governmental interest and not unreasonably limit alternative avenues of communication. 2. Are the Ordinances Narrowly Tailored to Serve a Substantial Governmental Interest? Municipalities may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial governmental interest. Alameda Books, 122 S.Ct." }, { "docid": "6141893", "title": "", "text": "state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). Under either test, a showing of a substantial state interest and narrow tailoring must be made to vindicate the ordinance. Because the First Amendment test also imposes a requirement that there be “ample alternative channels of communication” open to speakers, the First Amendment analysis is more stringent than the Equal Protection analysis, and, in most circumstances, a content-neutral ordinance that can withstand scrutiny under the First Amendment is not vulnerable to an Equal Protection challenge. As the Sixth Circuit recently said in a similar case, “the Equal Protection Clause adds nothing to the First Amendment analysis; if a sufficient rationale exists for the ordinance under the First Amendment, then the City has demonstrated a rational basis for the alleged disparate treatment under the Equal Protection Clause.” DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 411 n. 7 (6th Cir.1997) (citing Renton, 475 U.S. at 55 n. 4, 106 S.Ct. 925; Young v. American Mini Theatres, 427 U.S. 50, 63-73, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)); see also Graff, 9 F.3d at 1325 (holding that since newsstand ordinance passes strict scrutiny under First Amendment, it necessarily survives scrutiny under equal protection analysis). For these reasons, the court concludes that there is no likelihood of success on the merits of plaintiffs’ equal protection claim. CONCLUSION For the reasons stated above, the court GRANTS in part plaintiffs’ motion for a preliminary injunction and ENJOINS implementation and enforcement of Local Law 29 and the occupancy permit scheme insofar as they permit the Commissioner of the Department of Transportation to exercise unfettered discretion with respect to termination of any occupancy permit entered into or to be entered into by plaintiffs. In all other respects, the court DENIES plaintiffs’ motion for a preliminary injunction. SO ORDERED. . The Zoning Amendment has been the subject of numerous legal challenges, see, e.g., Buzzetti v. City of New York, No. 96-7764, 1997 WL 164284 (S.D.N.Y. April 8, 1997)," }, { "docid": "1759166", "title": "", "text": "sites was properly calculated, based on conservative measurements, and, while not “site specific,” was an acceptable estimate of the potential number of sites in the permissible areas. Id. at 812-813. Finally, Justice Diamond rejected plaintiffs’ request for additional discovery, because the administrative record before the court was “thorough, extensive and comprehensive.” Id. at 813. The decision of the New York County Supreme Court was unanimously affirmed by both the Appellate Division, 663 N.Y.S.2d 812 (1st Dep’t 1997), and the New York Court of Appeals, 91 N.Y.2d 382, 694 N.E.2d 407, 671 N.Y.S.2d 406 (1998). Holding that the state constitutional standards governing regulations such as the Amended Zoning. Resolution are substantially the same as the federal standards, the Court of Appeals relied on both state and federal authority to hold that the Amended Zoning Resolution had a purpose unrelated to speech, imposed restrictions no broader than necessary to implement the legitimate concerns of the legislature, and provided for reasonable alternative avenues of communication. Thus, after a thorough review of the record below, the Court of Appeals held that the resolution did not violate the state constitution and could be enforced by defendants. 694 N.E.2d at 420, 671 N.Y.S.2d at 419. On February 26, 1998, plaintiffs returned to this Court seeking a temporary restraining order and a preliminary injunction against the enforcement of the Amended Zoning Resolution. DISCUSSION Defendants contend that the doctrine of collateral estoppel precludes plaintiffs from relitigating in this Court the same factual issues that have already been tried and decided in the state court. The preclusive effect of a state court determination in a subsequent federal proceeding is governed by the rules of the state in which the prior action was tried. 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); State of New York v. Sokol, 113 F.3d 303, 306 (2d Cir.1997). Under New York law, a factual issue determined in a prior litigation is given preclusive effect if the issue to be precluded was necessarily decided in the prior litigation and the party opposing preclusion had a" }, { "docid": "16859016", "title": "", "text": "claim arising from the same events would be equally meritless.” (footnotes omitted)). Plaintiffs do not deny that the state and federal standards are nominally the same in all material respects, but rather argue that the standards are applied differently in state and federal court. In particular, plaintiffs contend that federal courts require greater proof from municipalities that the non-speech-related government interests at stake are substantial and that reasonable alternative avenues of communication remain available. We note that this contention is in stark contrast to plaintiffs’ repeated assertions in earlier stages of this litigation that New York courts apply more favorable standards to their free-speech claims than federal courts. In any event, apart from their recent vintage, plaintiffs’ arguments are mistaken. A. Substantial Government Interests With respect to the substantiality of New York’s non-speech-related interests in the Zoning Amendment, the New York Court of Appeals observed that “the City Council assembled an extensive legislative record connecting adult establishments and negative secondary effects, including numerous studies on the effects of adult establishments both within and without New York City.” Stringfellow’s, 91 N.Y.2d at 397, 671 N.Y.S.2d 406, 694 N.E.2d 407. The court then reviewed in detail this legislative record, which included studies by the Times Square Business Improvement District, the Chelsea Action Coalition and Manhattan Community Board 4, and the Department of City Planning (“DCP”). Each of these studies linked the presence of adult establishments to increased crime and decreased property values. See id at *6-7, 671 N.Y.S.2d 406, 694 N.E.2d 407. The court also noted that, apart from the City’s own studies, the legislative record contained the conclusions of studies conducted by city councils and town boards throughout the country, which also showed a correlation between adult establishments and negative secondary effects such as increased crime, depressed real estate markets, and an overall decline in the quality and character of surrounding neighborhoods. See id Finally, the court rejected plaintiffs’ complaints about the sufficiency of the evidence, holding that it was entirely appropriate to rely on studies from other jurisdictions — particularly in light of the fact that City officials had considered" }, { "docid": "16232500", "title": "", "text": "Supreme Court’s May 13, 2002 decision in Alameda Books. On appeal, the plaintiff in Baby Dolls maintained that the evidence relied upon by the city was irrelevant to its ordinance and that the city needed specific evidence linking bikini tops to reducing secondary effects. The Fifth Circuit rejected that argument, quoting Alameda Books that a city is not required “to demonstrate^] ... with empirical data, that its ordinance will successfully lower crime,” at least “not without actual and convincing evidence from plaintiffs to the contrary,” because “[s]uch a requirement would go to far in undermining [the] settled position that municipalities must be given a reasonable opportunity to experiment with solutions to address the secondary effects of protected speech.” 295 F.3d at 481. The Fifth Circuit held the city needed only to produce some evidence of adverse secondary effects produced by adult entertainment in order to justify an enactment using the secondary effects doctrine. In addition, the city needed to present sufficient evidence demonstrating a link between the regulation and the asserted governmental interest under Renton’s “reasonable belief standard.” Id. “Common experience” can support a time, place and manner regulation, Alameda Books, 122 S.Ct. at 1743 (Justice Kennedy concurring in the judgment). Furthermore, this court has found no federal case which bars reliance on anecdotal evidence. In Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998) , the New York Court of Appeals affirmed the decision of a lower court upholding New York City’s adult zoning ordinance. In doing so, it stated: Contrary to plaintiffs’ contentions, the “non-empirical,” anecdotal evidence that comprised the bulk of the local studies does not render those studies worthless. In the proper context, anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects [citing Renton, 475 U.S. at 44, 106 S.Ct. 925 and ILQ Investments, 25 F.3d at 1416-17], particularly where, as here, the nonempirical information is extensive and indicative of a clear relationship between adult uses and urban decay. 694" }, { "docid": "1759168", "title": "", "text": "full and fair opportunity to litigate the issue. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984); Sokol, 113 F.3d at 306. Collateral estoppel “has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party ... and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Where factual determinations by a state court are at issue, collateral estoppel also “promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen, 449 U.S. at 95-96. The First Amendment standard applicable to a content-neutral zoning ordinance regulating the location of adult entertainment businesses was established by the Supreme Court of the United States in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Under Renton, zoning ordinances of the kind at issue in these actions are content neutral time, place, and manner regulations if the legislative purpose is other than the restriction of speech. According to Renton, such a content neutral ordinance is permissible if it is “designed to serve a substantial governmental interest” and “allows for reasonable alternative avenues of communication.” Id., 475 U.S. at 50. Each of the inquiries set out by the Supreme Court in Renton —the legislative purpose, whether the ordinance is designed to advance a substantial government interest, and the availability of reasonable alternative avenues of communication — is a factual issue that has been litigated by plaintiffs and decided by the Supreme Court for New York County and affirmed by both the Appellate Division and the New York Court of Appeals. After extensive submissions by the parties, Justice Diamond held that (1) the City acted in response to concerns regarding the secondary effects of adult establishments; (2) the City reasonably relied on a number of studies to conclude that adult businesses produce adverse secondary effects; (3) the Amended Zoning Resolution is “no broader than necessary” to prevent those" }, { "docid": "10718104", "title": "", "text": "injunction would not disserve the public interest. The only real 'issue here is whether plaintiffs are reasonably likely to succeed on the merits. I conclude that they are. I. Protected Activity Picketing, as a means of expressing one’s opinion on a public issue, “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980). No less than the door-to-door distribution of handbills, picketing is “essential to the poorly financed causes of little people.” See Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943). II. Public Forum It is settled law that public places associated historically with the exercise of free speech, such as streets, parks, and sidewalks, are to be regarded as public forums. United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983). Residential streets in neighborhoods where there are neither sidewalks nor street lights are just as much associated with free expression as are the central squares of our cities and towns. See Carey v. Brown, 447 U.S. at 460, 100 S.Ct. at 2289-90. III. Standard The test for permissible time, place, and manner regulation of speech in a public forum has been restated recently by the United States Supreme Court: In ... quintessential public forums, the government may not prohibit all communicative activity____ The State may ... enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). The defendants have presented no authority suggesting that single family, residential surroundings make a public street anything •less than a quintessential public forum. Therefore, this ordinance must pass the Perry four-pronged test. A. Content Neutral The ordinance here in question is content neutral. All residential picketing, regardless of the cause on behalf of which it is conducted, is" } ]

[ { "docid": "16592557", "title": "", "text": "an action in their own right against such parties. See Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 120 (2d Cir.1991) (“A claim against a third party for defrauding a corporation with the cooperation of management accrues to credi-tors_”). The appellees’ papers state that a claim by creditors in their own right would be time-barred under New York law. Whether that is so is not before us, and we must address the present action in the form in which it was brought. In a bankruptcy proceeding, state law determines whether a right to sue belongs to the debtor or to the individual creditors. St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 700 (2d Cir.1989). The Bankruptcy Code places a trustee in the shoes of the bankrupt corporation and affords the trustee standing to assert any claims that the corporation could have instituted prior to filing its petition for bankruptcy.. See 11 U.S.C. §§ 541, 542; Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 428-29, 92 S.Ct. 1678, 1685-86, 32 L.Ed.2d 195 (1972); Wagoner, 944 F.2d at 118. In the instant matter, the Committee, while not a trustee in bankruptcy, is in a position analogous to a trustee because it is suing on behalf of the debtor. For that reason, the district court treated the Committee as if it were a trustee for the purpose of determining standing. In re The Mediators, 190 B.R. at 526 n. 6. The Committee does not challenge that analysis. “[A] bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Wagoner, 944 F.2d at 118. Were the law otherwise, the debtor’s assets would be depleted to enforce rights possessed by third parties, see Barnes v. Schatzkin, 215 A.D. 10, 212 N.Y.S. 536, 539 (1st Dep’t 1925), and defendants would face the danger of duplica-tive recoveries. Under New York law, claims such as the present one belong to the creditors qua creditors. As a result, an action by" } ]

[ { "docid": "19089018", "title": "", "text": "St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 700 (2d Cir.1989) (claims may be asserted by bankruptcy trustee depending on analysis of state law and whether claims are “property of debtor”). Moreover, “[i]t is well settled that a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Wagoner, 944 F.2d at 118 (citing Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 434, 92 S.Ct. 1678, 1688, 32 L.Ed.2d 195 (1972)); see also Barnes v. Schatzkin, 215 A.D. 10, 212 N.Y.S. 536 (1st Dep’t 1925), aff'd, 242 N.Y. 555, 152 N.E. 424 (1926). In considering whether a bankruptcy trustee has standing to sue, then, it is important to determine if the claims belong to the debtor-or to the debtor’s creditors or to both. Where claims belong solely to the creditors and involve misconduct on the part of the debtor against creditors, i.e., “when a bankrupt corporation has joined with a third party in defrauding its creditors, the trustee cannot recover against the third party for the damage to the creditors.” Wagoner, 944 F.2d at 118. The bankruptcy trustee, therefore, only has standing for causes of action where there is “damage to the corporation, apart from that done to the [creditors].” Id. at 118-19 (emphasis in original). Indeed, “[a] claim against a third party for defrauding a corporation with the cooperation of management accrues to creditors, not to the guilty corporation.” Id. at 120. The Second Circuit recently addressed this standing issue in In re Mediators, Inc., 105 F.3d 822 (2d Cir.1997). In Mediators, the Second Circuit affirmed the granting of a motion to dismiss holding that a creditor’s committee, suing in the shoes of a debtor, had no standing to bring claims against professional defendants alleged to have aided and abetted the debtor’s breach of fiduciary duties. 105 F.3d at 825-27. Relying on Mediators (and predecessor cases), the professional defendants argue that plaintiffs have no standing to assert the aiding and abetting breach of fiduciary duty" }, { "docid": "21511533", "title": "", "text": "re Mediators, 105 F.3d at 827). As a result, a trustee has standing to sue where a manager or officer acted “entirely in his own interests and adversely to the interests of the corporation.” Wight, 219 F.3d at 87. But “[t]he exception is a narrow one and applies only when the agent has ‘totally abandoned’ the principal’s interest.” In re Mediators, 105 F.3d at 827 (quoting Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985)). “The exception does not apply simply because the agent has a conflict of interest or does not act primarily for his principal.” Grumman Olson Indus., Inc. v. McConnell (In re Grumman Olson Indus., Inc.), 329 B.R. 411, 425 (Bankr.S.D.N.Y.2005). And the adverse interest exception is subject to the sole actor rule. Under the sole actor rule, the acts of a wrongdoer agent are imputed to the principal “where the principal and agent are one and the same.” In re Mediators, 105 F.3d at 827. Under the sole actor rule, the adverse interest exception “does not apply if the wrongdoing agent is the corporation’s sole shareholder, or where all of the corporation’s management participate in the wrongdoing.” In re Grumman Olson Indus., Inc., 329 B.R. at 425. That is, “imputation applies unless at least one de-cisionmaker in a management role or amongst the shareholders is innocent and could have stopped the fraud.” In re Bennett Funding Group, Inc., 336 F.3d at 101. See Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997). As a result, a trustee must allege that an inside decision-maker or shareholder was “innocent of the [agent’s] misconduct, unaware of it, and able to prevent it had the misconduct been known.” Ernst & Young v. Bankr. Servs., Inc. (In re CBI Holding Co.), 311 B.R. 350, 371 (S.D.N.Y.2004). See Wechsler, 212 B.R. at 36; In re Sharp Int’l Corp. v. KPMG LLP (In re Sharp Int’l Corp.), 319 B.R. 782, 788 (Bankr.E.D.N.Y.2005). Viewed another way, if a trustee alleges the existence of an innocent insider, the sole actor rule will not bar standing." }, { "docid": "1814641", "title": "", "text": "Wight, 219 F.3d at 86. In Wagoner, the individual who looted the corporation was the corporation’s sole stockholder, director, and president. Wagoner, 944 F.2d at 120. However, lower courts have found that the applicability of the Wagoner rule is not limited to situations where the fraud was committed by a corporation’s sole shareholder and director, but also extends to situations where there are multiple officers and directors. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997) (“the Wagoner rule only applies where all relevant shareholders and/or decision-makers are involved in the fraud”) (emphasis in original). Under Wechsler’s expanded interpretation of Wagoner, management’s fraudulent conduct and knowledge will not be imputed to the corporation if the complaint alleges that there was at least one innocent member of management who could or would have been able to prevent the fraud had he known about it. Wechsler, 212 B.R. at 36; see CBI Holding, 247 B.R. at 364-65 (finding, after trial on the merits, that a corporation, whose management was involved in an accounting fraud, was not barred from asserting claims for professional malpractice for failure to detect fraud, where the corporation had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it). Even if the Wagoner rule applies, a trustee may have standing to assert a claim against the corporation’s third party professionals under the adverse interest exception to that rule. The adverse interest exception applies where “the officer acted entirely in his own interests and adversely to the interests of the corporation.” Wight, 219 F.3d at 87; Mediators, Inc. v. Manney (In re Mediators, Inc.), 105 F.3d 822, 827 (2d Cir.1997); CBI Holding, 247 B.R. at 365. “The theory is that ‘where an agent, though ostensibly acting in the business of the principal, is really committing a fraud for his own benefit, he is acting outside of the scope of his agency, and it would be most unjust to charge the principal with knowledge of it.’ ” Wight, 219 F.3d at 87 (citing Munroe v. Harriman," }, { "docid": "21511531", "title": "", "text": "498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1091 (2d Cir.1995) (a plaintiff must allege concrete, particularized injury to itself that is likely to be redressed by the relief sought). A trustee’s standing “coincides with the scope of the powers the Bankruptcy Code gives a trustee” and derives from the estate’s right to sue. Wagoner, 944 F.2d at 118. As the Second Circuit observed: In a bankruptcy proceeding, state law determines whether a right to sue belongs to the debtor or to the individual creditors. The Bankruptcy Code places a trustee in the shoes of the bankrupt corporation and affords the trustee standing to assert any claims that the corporation could have instituted prior to filing its petition for bankruptcy. Mediators, Inc. v. Manney (In re Mediators, Inc.), 105 F.3d 822, 825-26 (2d Cir.1997) (citations omitted). In Shearson Lehman Hutton Inc. v. Wagoner, the Second Circuit determined that “[i]t is well settled that a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Wagoner, 944 F.2d at 118 (citing Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 434, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972)). “A claim against a third party for defrauding a corporation with the cooperation of management accrues to creditors, not to the guilty corporation.” Wagoner, 944 F.2d at 120. This rule gives effect to “ ‘the fundamental principle of agency that the misconduct of managers within the scope of their employment will normally be imputed to the corporation.’ ” Breeden v. Kirkpatrick and Lockhart L.L.P. (In re Bennett Funding Group, Inc.), 336 F.3d 94, 100 (2d Cir.2003) (quoting Wight, 219 F.3d at 86). The Wagoner rule is qualified by the adverse interest exception. “ ‘Under New York law, the adverse interest exception rebuts the usual presumption that the acts and knowledge of an agent acting within the scope of employment are imputed to the principal.’ ” Wight, 219 F.3d at 87 (quoting In" }, { "docid": "11522758", "title": "", "text": "When confronted with evidence of likely wrongdoing, they placed BFG stock in a trust expressly making Patrick Chairman and CEO of BFG. Their conduct amounted to acquiescence in the fraud perpetrated by Patrick. The trustee therefore lacks standing to sue the law firm defendants and AA for professional malpractice arising from that fraud. The trustee’s argument here rests in large measure on Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld L.L.P., 212 B.R. 34 (S.D.N.Y.1997), which he cites for the proposition that to apply the rule which imputes fraud to the debtor and bars the trustee from bringing suit, “all relevant shareholders and/or decisionmakers [must be] involved in the fraud.” See Wechsler, 212 B.R. at 36. Only then may the fraud be imputed to the corporation and the trustee denied standing to sue third parties on its behalf. See In re CBI Holding Co., 247 B.R. 341, 364-65 (Bankr.S.D.N.Y.2000). The trustee contends that these eases require a reversal. We disagree. Here, however, we need not resolve the question of whether the presence of innocent directors would provide the trustee with standing where fewer than all shareholders are implicated in the fraud, because that case is not before us. In CBI the bankruptcy judge makes clear that imputation applies unless at least one decisionmaker in a management role or amongst the shareholders is innocent and could have stopped the fraud. See CBI, 247 B.R. at 365. Here whether one or more so-called independent directors, the people relied upon by the trustee to avoid Wagoner, might have in some metaphysical sense stopped the fraud, it is beyond peradventure that under all the circumstances, it was only their heart that might have been in the right place. Indeed, each so-called independent director was impotent to actually do anything. The trustee seems to believe that the Wagoner rule is defeated by a would-a, could-a, should-a test but that is simply not the law. Further in CBI, unlike the case at bar, its 48% shareholder, TCW, was innocent and ignorant of the scheme, and the court found that one of TCW’s representatives on the board was" }, { "docid": "19089021", "title": "", "text": "the debtor in Mediators, so that wrongful acts of Keene’s officers and directors should not be imputed to Keene as the corporation.” (Pls. Opp. at 97). Limited support for plaintiffs argument can be found in Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997). Judge Knapp held in that case that the Wagoner [or Mediators ] rule is not limited to a situation where the individual committing the wrongdoing is a sole shareholder, but “only applies where all relevant shareholders and/or decisionmakers are involved in the fraud.” Id. at 36. Hence, Judge Knapp held that unless the complaint “actually alleges the existence of an innocent member of ... management who would have been able to prevent the fraud had he known about it,” id., the fraud is imputed to the corporation and the trustee therefore would not have standing. Plaintiffs allege in their opposition papers for the first time that “at both the Keene level and the Bairnco level there are multiple decision makers involved, not all of whom were involved in the wrongdoing.” (Pis. Opp. at 103-04). Thus, claim plaintiffs, “unity of person between corporation and defendants” does not exist here as it did in Mediators and Wagoner. (Pls. Opp. at 104). Plaintiffs’ amended complaint and opposition memorandum do not allege, however, that innocent members of management would have been able to prevent the fraud had they known about it. Rather, a number of key officers and directors of Keene have been named as defendants and the amended complaint alleges in great detail that Keene fully designed, consented to, and participated in the Transactions. The amended complaint contains a number of unequivocal references to Keene’s acquiescence in and encouragement of the underlying conduct at issue. {See Kidder Reply at 1-4) (outlining the numerous allegations in the amended complaint that can only be construed as alleging a unity of purpose among Keene, Bairnco, and the corporate insiders of both companies). Even accepting as true all the factual allegations against the professional defendants, plaintiffs’ amended complaint still alleges that it was Keene and its officers that masterminded, orchestrated," }, { "docid": "11306554", "title": "", "text": "on this point. There, the Second Circuit held that “[a] claim against a third party for defrauding a corporation with the cooperation of management accrues to the creditors, not to the guilty corporation.” Id. at 120. The rule was framed by the Wagoner court as one of standing-that “ ‘a reorganization trustee lacks standing to assert the claims of creditors against third parties who allegedly aided the bankrupt in diverting its assets ....”’ Id. (citations omitted). The Wagoner rule applies only where all relevant shareholders and decisionmakers were involved in the wrongdoing, such that their guilt can be imputed to the corporation. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 35-36 (S.D.N.Y.1997). Moreover, the Wagoner rule has no application where, as here, the trustee’s claims are asserted not against third parties who allegedly permitted or assisted management’s defalcation, but against the defalcating managers themselves, for breach of their fiduciary duty to the corporation they managed. Moreover, the holding in Wagoner — that creditors, rather than the trustee, have standing to assert claims against third parties who allegedly aided and abetted the debtor’s management in diverting its assets, where all members of management and shareholders participated in the fraud — clearly shows the fallacy of the Superintendent’s causation argument. If, as the Superintendent contends, there is no causation where all members of management participated in the fraud, such an absence of causation would defeat an action by creditors as well. The Superintendent’s reliance on General Rubber on this point is also misplaced. The Superintendent emphasizes that Judge Cardozo focused on the parent company’s allegation that the defendant director acquiesced and approved of the defalcation and that the plaintiff could and would have intervened if advised by the defendant of the defalcation at the subsidiary level. From this, the Superintendent argues that the holding of General Rubber mandates that a plaintiff must allege that the corporation had at least one innocent director in management who could and would have taken action to stop the defalcation in order for the corporation to assert a claim for breach of fiduciary duty." }, { "docid": "19089020", "title": "", "text": "claim in this case. I agree. Mediators requires dismissal of plaintiffs’ aiding and abetting fiduciary duty claim against all four professional defendants. Where, as here, third party professional defendants are charged with aiding and abetting a corporation in a scheme to defraud the company’s creditors, the claim “belong[s] to the creditors qua creditors,” see id. at. 826 (emphasis in original), and cannot be asserted by the company, its trustee in bankruptcy, a committee of unsecured creditors, or anyone else standing in the shoes of the debtor corporation. Plaintiffs set forth two basic arguments in response to defendants’ standing argument: (1) Mediators and its predecessor cases are distinguishable (Pls. Opp. at 97-98); and (2) application of Mediators would work a “great injustice”, in this case because Keene’s credi tors are enjoined by the Bankruptcy Court from pursuing their own lawsuits in favor of this action. (Pis. Opp. at 107). Plaintiffs claim this case is distinguishable from Mediators because Keene is a wholly-owned subsidiary of Bairnco that was not dominated by an “individual sole shareholder/decision-maker, as was the debtor in Mediators, so that wrongful acts of Keene’s officers and directors should not be imputed to Keene as the corporation.” (Pls. Opp. at 97). Limited support for plaintiffs argument can be found in Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997). Judge Knapp held in that case that the Wagoner [or Mediators ] rule is not limited to a situation where the individual committing the wrongdoing is a sole shareholder, but “only applies where all relevant shareholders and/or decisionmakers are involved in the fraud.” Id. at 36. Hence, Judge Knapp held that unless the complaint “actually alleges the existence of an innocent member of ... management who would have been able to prevent the fraud had he known about it,” id., the fraud is imputed to the corporation and the trustee therefore would not have standing. Plaintiffs allege in their opposition papers for the first time that “at both the Keene level and the Bairnco level there are multiple decision makers involved, not all of whom were involved in" }, { "docid": "21511534", "title": "", "text": "not apply if the wrongdoing agent is the corporation’s sole shareholder, or where all of the corporation’s management participate in the wrongdoing.” In re Grumman Olson Indus., Inc., 329 B.R. at 425. That is, “imputation applies unless at least one de-cisionmaker in a management role or amongst the shareholders is innocent and could have stopped the fraud.” In re Bennett Funding Group, Inc., 336 F.3d at 101. See Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997). As a result, a trustee must allege that an inside decision-maker or shareholder was “innocent of the [agent’s] misconduct, unaware of it, and able to prevent it had the misconduct been known.” Ernst & Young v. Bankr. Servs., Inc. (In re CBI Holding Co.), 311 B.R. 350, 371 (S.D.N.Y.2004). See Wechsler, 212 B.R. at 36; In re Sharp Int’l Corp. v. KPMG LLP (In re Sharp Int’l Corp.), 319 B.R. 782, 788 (Bankr.E.D.N.Y.2005). Viewed another way, if a trustee alleges the existence of an innocent insider, the sole actor rule will not bar standing. In re Bennett Funding Group, Inc., 336 F.3d at 101; In re CBI Holding Co., 311 B.R. at 373; In re Sharp Int’l Corp., 319 B.R. at 788. Some courts also recognize an innocent insider exception to the Wagoner rule. The innocent insider exception provides that the acts and knowledge of man agement will not be imputed to the company if there are innocent members of management who “could and would have prevented the misconduct, had they known of it.” In re CBI Holding Co., 311 B.R. at 372. But see In re Bennett Funding Group, Inc., 336 F.3d at 101 (“we need not resolve the question of whether the presence of innocent directors would provide the trustee with standing where fewer than all shareholders are implicated in the fraud.”); In re CBI Holding Co., 311 B.R. at 372 (declining to adopt an innocent insider exception). The Estate of M. Greenfield argues, among other things, that the Trustee’s First, Second, and Third Claims for Relief should be dismissed because under the Wagoner rule, the Trustee" }, { "docid": "2203971", "title": "", "text": "of certain CBI officers and management level employees who were involved in the accounting fraud must as a matter of law be imputed to CBI itself and would therefore bar CBI from contending that it was deceived by the erroneous financial statements that E & Y certified in respect of CBI’s 1992 and 1993 fiscal years. 14. However, a corporation whose management was involved in an accounting fraud is not barred from asserting claims for professional malpractice in not detecting the fraud, provided the cor poration had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it. Securities Investor Protection Corp. v. BDO Seidman, 49 F.Supp.2d 644, 649-651 (S.D.N.Y.1999) (permitting malpractice complaint against auditor to stand provided trustee re-pleads to assert the existence of an innocent member of management who could have prevented the fraud); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 35-36 (S.D.N.Y.1997) (permitting malpractice complaint against law firm to stand despite fraud by company CEO, because imputation rule applies only “where all relevant shareholders and/or decision-makers are involved in the fraud”); In re Wedtech Securities Litigation, 138 B.R. 5, 7-9 (S.D.N.Y.1992) (refusing to dismiss malpractice complaint against accountant on imputation grounds where officers guilty of misconduct were not the company’s sole shareholders). Cf. In re Mediators, Inc., 105 F.3d 822, 826 (2d Cir.1997) (debtor had no standing to assert claims against third parties because actions of sole shareholder and decision-maker rendered debtor a participant in the fraud). 15. Here, as demonstrated in the Findings of Fact, CBI’s 48% shareholder, TCW was innocent of the fraud, and one of its representatives on CBI’s board of directors, Frank Pados, testified that had he known of the fraud, he would have taken steps to stop it. It therefore follows that the wrongdoing on the part of CBI’s management is not imputable to CBI itself. Cf. FDIC v. Ernst & Young, 967 F.2d 166, 171 (5th Cir.1992) (minority board members had no ability to dictate company’s activities even if they had been aware audit report was inaccurate)." }, { "docid": "1814640", "title": "", "text": "professional malpractice claims against third parties because of the “debtor’s collaboration with the [defendants] in promulgating and promoting the [fraud]”). The Wagoner rule is based on principles of agency law: The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it.... Underlying the rule is the presumption that an agent has discharged his duty to disclose to his principal “all the material facts coming to his knowledge with reference to the subject of his agency.” Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985). Thus, the Wagoner rule imputes the misconduct and knowledge of the corrupt management to the corporation, if the management was acting within the scope of employment. Since the trustee stands in the shoes of the corporation, it follows that the trustee is barred from suing to recover for a wrong that the corporation took part in. Wight, 219 F.3d at 86. In Wagoner, the individual who looted the corporation was the corporation’s sole stockholder, director, and president. Wagoner, 944 F.2d at 120. However, lower courts have found that the applicability of the Wagoner rule is not limited to situations where the fraud was committed by a corporation’s sole shareholder and director, but also extends to situations where there are multiple officers and directors. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997) (“the Wagoner rule only applies where all relevant shareholders and/or decision-makers are involved in the fraud”) (emphasis in original). Under Wechsler’s expanded interpretation of Wagoner, management’s fraudulent conduct and knowledge will not be imputed to the corporation if the complaint alleges that there was at least one innocent member of management who could or would have been able to prevent the fraud had he known about it. Wechsler, 212 B.R. at 36; see CBI Holding, 247 B.R. at 364-65 (finding, after trial on the merits, that a corporation, whose management was involved in an accounting" }, { "docid": "11306553", "title": "", "text": "advisors or other third parties, based on an allegation that they breached their duty by failing to report or prevent mismanagement by FCFC’s officers and directors. They are being sued as management of FCFC for their own failures and defalcations in the management of FCFC. The causal link is clear. To hold otherwise would mean that a corporation cannot recover from its own officers and directors for waste and mismanagement (through a derivative suit or otherwise) where all of the members of management were involved in the wrongdoing, which clearly is not the law. See e.g., Brick v. Dominion Mort. & Realty Trust, 442 F.Supp. 283, 294-95 (W.D.N.Y.1977) (finding that a derivative plaintiff was excused from making a demand upon the directors to commence an action to recover for management’s wrongdoing, where all the directors participated or acquiesced in the wrongs alleged, because demand would be futile); Papilsky v. Berndt, 59 F.R.D. 95 (S.D.N.Y.1973) (same). Comparison of the instant case with Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991), is instructive on this point. There, the Second Circuit held that “[a] claim against a third party for defrauding a corporation with the cooperation of management accrues to the creditors, not to the guilty corporation.” Id. at 120. The rule was framed by the Wagoner court as one of standing-that “ ‘a reorganization trustee lacks standing to assert the claims of creditors against third parties who allegedly aided the bankrupt in diverting its assets ....”’ Id. (citations omitted). The Wagoner rule applies only where all relevant shareholders and decisionmakers were involved in the wrongdoing, such that their guilt can be imputed to the corporation. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 35-36 (S.D.N.Y.1997). Moreover, the Wagoner rule has no application where, as here, the trustee’s claims are asserted not against third parties who allegedly permitted or assisted management’s defalcation, but against the defalcating managers themselves, for breach of their fiduciary duty to the corporation they managed. Moreover, the holding in Wagoner — that creditors, rather than the trustee, have standing to assert claims" }, { "docid": "21511532", "title": "", "text": "behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Wagoner, 944 F.2d at 118 (citing Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 434, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972)). “A claim against a third party for defrauding a corporation with the cooperation of management accrues to creditors, not to the guilty corporation.” Wagoner, 944 F.2d at 120. This rule gives effect to “ ‘the fundamental principle of agency that the misconduct of managers within the scope of their employment will normally be imputed to the corporation.’ ” Breeden v. Kirkpatrick and Lockhart L.L.P. (In re Bennett Funding Group, Inc.), 336 F.3d 94, 100 (2d Cir.2003) (quoting Wight, 219 F.3d at 86). The Wagoner rule is qualified by the adverse interest exception. “ ‘Under New York law, the adverse interest exception rebuts the usual presumption that the acts and knowledge of an agent acting within the scope of employment are imputed to the principal.’ ” Wight, 219 F.3d at 87 (quoting In re Mediators, 105 F.3d at 827). As a result, a trustee has standing to sue where a manager or officer acted “entirely in his own interests and adversely to the interests of the corporation.” Wight, 219 F.3d at 87. But “[t]he exception is a narrow one and applies only when the agent has ‘totally abandoned’ the principal’s interest.” In re Mediators, 105 F.3d at 827 (quoting Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985)). “The exception does not apply simply because the agent has a conflict of interest or does not act primarily for his principal.” Grumman Olson Indus., Inc. v. McConnell (In re Grumman Olson Indus., Inc.), 329 B.R. 411, 425 (Bankr.S.D.N.Y.2005). And the adverse interest exception is subject to the sole actor rule. Under the sole actor rule, the acts of a wrongdoer agent are imputed to the principal “where the principal and agent are one and the same.” In re Mediators, 105 F.3d at 827. Under the sole actor rule, the adverse interest exception “does" }, { "docid": "2381055", "title": "", "text": "be sued. 11 U.S.C. § 323. However, it is well settled that a bankruptcy trustee generally does not have standing to sue third parties on behalf of the estate’s creditors, and may only assert claims held by the bankrupt corporation. Wagoner, 944 F.2d at 118 (citing Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 434, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972)); Am. Tissue, Inc. v. Donaldson, Lufkin & Jenrette Securities Corp., 351 F.Supp.2d 79, 88-90 (S.D.N.Y.2004) (Lynch, J.); Am. Tissue, Inc. v. Arthur Andersen, L.L.P., 275 F.Supp.2d 398, 404 (S.D.N.Y.2003) (Scheindlin, J.). The in pari delicto doctrine and a party’s standing to sue under Wagoner represent separate and distinct legal principles that may bar an estate representative’s recovery from a third party malfea-sor where the debtor is also at fault. In re Grumman Olson Industries, Inc., 329 B.R. 411, 424 n. 5 (Bankr.S.D.NY.2005); John T. Gregg, The Doctrine of In Pari Delicto: Recent Developments, Norton Ann. Surv. of BankrLaw, Paet I § 5, Sept. 2006, at 1 0in pari delicto “is generally treated as an equitable defense under applicable state law”). In pari delicto is a state law equitable defense analogous to unclean hands “rooted in the common-law notion that a plaintiffs recovery may be barred by his own wrongful conduct.” Pinter v. Dahl, 486 U.S. 622, 632, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988). It is based on the idea that “where parties are equally at fault, the defending party is in the stronger position.” Ross v. Bolton, 904 F.2d 819, 824 (2d Cir.1990). “It is not enough that both parties are at fault, or in delicto— they must be equally at fault, or in pari delicto.” Grumman Olson, 329 B.R. at 424 n. 5 (citing Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 163 (2d Cir.2003)). In other words, in pari delicto “refers to the plaintiffs participation in the same wrongdoing as the defendant.” Gregg, The Doctrine of In Pari Delicto: Recent Developments, at 3 (quoting Terlecky v. Hurd (In re Dublin Securities, Inc.), 133 F.3d" }, { "docid": "11306549", "title": "", "text": "1093. This rule required the dismissal of the complaint, the court found, because the claims asserted by the trustee, although numerous, boiled down to two general types: claims based upon the alleged distribution of misleading private placement memoranda to investors, and claims for the “provision of deficient professional services to the debtors.” Id. at 1092. As to the first category of claims, the court found that the trustee lacked standing because, under applicable state law, the claims for fraud or negligence in the distribution of private placement mem-oranda belonged to the defrauded investors, and were not claims that could have been asserted by the debtors pre-petition. As to the second category of claims asserted in Hirsch, for malpractice against the debtor’s pre-petition professionals, the court found that the trustee lacked standing under the rule of Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991), which prohibits a bankruptcy trustee from asserting claims against professionals or other third parties who allegedly aided and abetted management’s defalcations, where all shareholders and members of management were involved in the wrongdoing, such that them guilt can be imputed to the corporation. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 35-36 (S.D.N.Y.1997). The claims asserted in the Trustee’s Action do not fall into either of the categories identified by the court in Hirsch. They are not claims that belong to FCFC’s shareholders or creditors, nor are they claims against FCFC’s professionals or other third parties. They are claims against FCFC’s officers and directors, which clearly belong to FCFC. Indeed, the Trustee is the only person with standing to assert these claims. In re Keene Corp., 164 B.R. 844, 853-54 (Bankr.S.D.N.Y.1994) (“Claims based upon breach of a fiduciary duty belong to a corporation, but once bankruptcy ensues, they are enforceable by the trustee.The trustee, therefore, is the only person with standing to bring those claims ... [and] the creditors are barred from asserting them”); In re Interpictures, Inc., 86 B.R. 24, 28 (Bankr.E.D.N.Y.1988) (“in an insolvency situation, however, the right to redress damages inflicted upon the debtor is property of" }, { "docid": "18138671", "title": "", "text": "Opposition to Defendants [HIG/SVCJ’s Motion to Dismiss, dated May 16, 2005 (“Committee Opposition”), at 13) (ECF Doc. #37), (2) the allegations in the Amended Complaint establish that Grumman was a victim of the HIG/SVC’s wrongful conduct, and not a primary wrongdoer, (id., at 14), (3) the “adverse interest” exception renders the Wagoner Rule inapplicable, (id., at 15-18), and (4) it is inappropriate to dismiss under Wagoner at the pleading stage. (Id., at 18-19.) Three of the four points can be rejected with brief comment. First, although the Wagoner Rule does not bar claims against corporate fiduciaries, In re Mediators, 105 F.3d at 826-27, a corporate insider cannot aid and abet another corporate insider. Solow v. Stone, 994 F.Supp. 173, 181 (S.D.N.Y.), aff'd, 163 F.3d 151 (2d Cir.1998). “[A] third-party relationship between the aider and abettor and the corporation is a necessary element in any such action.” Id. If all of the defendants were insiders, the aiding and abetting claim must fail. Second, the Wagoner Rule bars the aiding and abetting claim even where the corporation is the victim of the insider’s fraud. Initially, if the corporation did not suffer an injury, the trustee would not have any claim to assert, and the Wagoner Rule would be irrelevant. Thus, consideration of the Wagoner Rule assumes an injury to the corporation. More to the point, the Wagoner Rule was applied in Mediators where the debtor’s sole shareholder transferred the debtor’s art collection to himself at discounted prices with bank loans guaranteed by the debtor. See Mediators, 105 F.3d at 824. Third, the Wagoner Rule was applied at the pleading stage to dismiss the complaints in Hirsch (affirming dismissal under Fed.R.Civ.P. 12(b)(1)) and Mediators (affirming dismissal under Fed.R.Civ.P. 12(b)(6)). Accord Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 35 (S.D.N.Y.1997)(dismissing complaint under Wagoner rule pursuant to Fed.R.Civ.P. 12(b)(1)); Granite Partners, 194 B.R. at 330-31 (denying injunctive relief under Wagoner based on allegations in complaint). Cf. Color Tile, 322 F.3d at 164 (affirming dismissal of complaint at pleading stage based on in pari delicto). The Committee’s invocation of the “adverse interest”" }, { "docid": "19089017", "title": "", "text": "under 18 U.S.C. §§ 1962(c) & (d). B. Breach of Fiduciary Duty 1. Standing Standing is a constitutional as well as jurisdictional requirement. The Constitution limits the judicial power of the federal courts to deciding “cases or \"controversies.”' U.S. Const, art. III, § 2. The doctrine of standing comes directly from this constitutional provision. To have standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct [that is] likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). If a plaintiff lacks standing to bring a claim or action, it must be dismissed pursuant to Fed.R.Civ.P. 12(b): “Under the Bankruptcy Code the trustee stands in the shoes of the bankrupt corporation and has standing to bring any suit that the bankrupt corporation could have instituted had it not petitioned for bankruptcy.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092-93 (2d Cir.1995); St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 700 (2d Cir.1989) (claims may be asserted by bankruptcy trustee depending on analysis of state law and whether claims are “property of debtor”). Moreover, “[i]t is well settled that a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Wagoner, 944 F.2d at 118 (citing Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 434, 92 S.Ct. 1678, 1688, 32 L.Ed.2d 195 (1972)); see also Barnes v. Schatzkin, 215 A.D. 10, 212 N.Y.S. 536 (1st Dep’t 1925), aff'd, 242 N.Y. 555, 152 N.E. 424 (1926). In considering whether a bankruptcy trustee has standing to sue, then, it is important to determine if the claims belong to the debtor-or to the debtor’s creditors or to both. Where claims belong solely to the creditors and involve misconduct on the part of the debtor against creditors, i.e., “when a bankrupt corporation has joined with a third" }, { "docid": "16838375", "title": "", "text": "stands in the shoes of the bankrupt corporation and has standing to assert a claim that the bankrupt corporation could have instituted had it not petitioned for bankruptcy. See Hirsch, 72 F.3d at 1093 (citing Wagoner, 944 F.2d at 118 (collecting cases)). It is also well settled that a bankruptcy trustee generally has no standing to sue a third party on behalf of the estate’s creditors. See Wagoner, 944 F.2d at 118. Furthermore, the determination of whether a claim properly belongs to creditors as opposed to the debtors is a question of state law. See St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 700 (2d Cir.1989). In Wagoner, a bankruptcy trustee asserted a claim against a broker for the alleged aiding, abetting and undue influencing of a sole shareholder and decision-maker in the making of bad trades that dissipated corporate funds. Id. at 119. There, the sole shareholder and decision-maker knew of the bad investments and also actively forwarded them. See id. at 120. The Court held that “a claim against a third party for defrauding a corporation with the cooperation of management accrues to creditors, not to the guilty corporation.” Id. at 120. Subsequently, the Wagoner rule has been interpreted as resting on a “finding that all relevant shareholders and/or decisionmakers are involved in the fraud.” Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 & n. 1 (S.D.N.Y.1997). See also In re Mediators, 105 F.3d 822, 826-27 (2d Cir.1997) (applying Wagoner rule when sole individual shareholder and decision-maker was party to fraud); Lippe v. Bairnco Corp., 218 B.R. 294, 302 (S.D.N.Y. 1998) (considering Wechsler’s requirement of allegations of “innocent members of management” in the complaint but deciding that standing did not exist because the complaint alleged “sufficient unity between Keene [the company] and [management] defendants to implicate Keene in the alleged wrongdoing”); Brown v. Deloitte & Touche LLP, 98 Civ. 6054(JSM), 1999 WL 269901, slip op. at 6 (S.D.N.Y. May 4,1999) (applying Wagoner rule to a sole corporate shareholder). The Trustee attempts to distinguish Wagoner by arguing that New York’s" }, { "docid": "16838376", "title": "", "text": "against a third party for defrauding a corporation with the cooperation of management accrues to creditors, not to the guilty corporation.” Id. at 120. Subsequently, the Wagoner rule has been interpreted as resting on a “finding that all relevant shareholders and/or decisionmakers are involved in the fraud.” Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 & n. 1 (S.D.N.Y.1997). See also In re Mediators, 105 F.3d 822, 826-27 (2d Cir.1997) (applying Wagoner rule when sole individual shareholder and decision-maker was party to fraud); Lippe v. Bairnco Corp., 218 B.R. 294, 302 (S.D.N.Y. 1998) (considering Wechsler’s requirement of allegations of “innocent members of management” in the complaint but deciding that standing did not exist because the complaint alleged “sufficient unity between Keene [the company] and [management] defendants to implicate Keene in the alleged wrongdoing”); Brown v. Deloitte & Touche LLP, 98 Civ. 6054(JSM), 1999 WL 269901, slip op. at 6 (S.D.N.Y. May 4,1999) (applying Wagoner rule to a sole corporate shareholder). The Trustee attempts to distinguish Wagoner by arguing that New York’s adverse interest exception applies here. That legal doctrine is an exception to the general rule in New York that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge. See Farr v. Newman, 14 N.Y.2d 183, 187, 250 N.Y.S.2d 272, 275, 199 N.E.2d 369 (1964). The general rule operates on the presumption that the agent has “discharged his duty to disclose to his principal all the material facts coming to his knowledge with reference to the subject of his agency.” Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 899, 488 N.E.2d 828 (1985) (quotation omitted). The adverse interest exception rebuts that presumption precisely because the agent is involved in a scheme to defraud the principal for the agent’s individual benefit. See Center, 66 N.Y.2d at 784, 497 N.Y.S.2d at 899, 488 N.E.2d 828. This exception is narrow, however, and it applies only when the agent has totally abandoned the principal’s interests. See id. 66 N.Y.2d at" }, { "docid": "16838378", "title": "", "text": "784-85, 497 N.Y.S.2d 898, 488 N.E.2d 828. Thus, the exception does not apply when the agent acts both for himself and for the principal, though the primary motivation for the acts is inimical to the principal. See In re Crazy Eddie Securities Litig., 802 F.Supp. 804, 817 (E.D.N.Y.1992). Plaintiffs argue that because the members of the Bressman Team acted solely for their individual benefit, Baron should not be held responsible for those fraudulent activities. In Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997), Judge Knapp analyzed the interaction between the adverse interest exception and the Wagoner rule. That case involved litigation pertaining to the fallout from a Ponzi scheme involving the Towers Financial Corporation. There, the bankruptcy trustee brought claims against the defendant, attorney for Towers Financial Corporation, alleging that “it had breached its fiduciary duty to the company and committed legal malpractice in failing to stop the fraud ‘personally overseen and directed’ by Towers’ CEO Steven Hoffen-berg ‘and his cohorts.’ ” 212 B.R. at 35. There, the Court found that the complaint had not alleged the “existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it.” Id. at 36. The Court noted that absent such an allegation, the trustee did not have standing to assert the claims under Wagoner. See id. The Court then granted the motion to dismiss but allowed the plaintiffs to replead if there was any member of management who did not know of the ongoing fraud and who, if advised of those facts, would have taken steps to bring the fraudulent conduct to an end. See id. Here, I first note that the Complaint reveals that Baron has pleaded guilty to one count of enterprise corruption in New York State Supreme Court. (See Complaint ¶ 11). That pleaded fact strongly suggests the existence of “sufficient unity” between Baron and its management to deprive the Trustee of standing, as the Court found in Lippe. Recognizing that the Wagoner standard involves all management or shareholders, however, my decision rests on the" } ]

[ { "docid": "11129315", "title": "", "text": "defendant’s premises without a search warrant were working solely for the enforcement, of federal law and pursuant to an established practice and custom which was that such searches were made for the-purpose of aiding the United States in the enforcement of its laws. Defendant’s motion was denied and he was permitted to present this appeal in forma pauperis, again appearing pro se. As defendant was unable to be present at the time set for oral argument before this court, the cause was submitted upon briefs. If the defendant had been able to establish in this case that there was a working agreement or understanding or an established practice and custom between federal officers and local police-officers, whereby unlawful searches and seizures were to be made by the police-officers and the evidence thus obtained turned over to federal officers for use in. the prosecution in the federal court, there would have been good grounds for excluding such evidence at the trial. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Fowler v. United States, 7 Cir., 62 F.2d 656. Defendant testified that after his arrest and as he was being taken to the police automobile in front of the hotel where he roomed, he saw a Buick or Oldsmobile automobile containing several men parked behind the police car, and that one of the police officers who had arrested him conferred briefly with the men in the other automobile. Defendant argues that the men in the second automobile must have been federal narcotic agents who were cooperating in the search and seizure. Defendant also points to the-fact that he was turned over to the custody of federal officers the day following his arrest, as showing cooperation between and joint action by the local and the federal officers. Also, in his brief in this court, defendant quotes from a news story in the April 29, 1953, issue of a Chicago newspaper, commenting on numerous arrests in Chicago for narcotic law violations, which contained the very general statement: “It is no secret that State law enforcement agencies and the government" } ]

[ { "docid": "23380939", "title": "", "text": "activities, the court found no United States participation in the arrest or seizure, and, further, that the actions of the Mexican officers had not been instigated by United States Customs or Narcotics officials. The court held that the seized tablets were properly admitted. In Birdsell v. United States, 346 F.2d 775 (5th Cir. 1965), cert. denied 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366, Birdsell objected to evidence allegedly obtained in violation of the Fourth Amendment. The arrest and seizure were made in Mexico by Mexican officials, without participation by United States agents. A Texas deputy sheriff who happened to be passing through town did assist the Mexican authorities by acting as an interpreter. The court held the evidence to have been properly admitted, stating: “* * * the Fourth Amendment does not apply to arrests and searches made by Mexican officials in Mexico for violation of Mexican law, even if the persons arrested are Americans and American police officers gave information leading to the arrest and search.” 346 F.2d at p. 782. In a footnote in the Birdsell opinion, the court indicated that if Federal officials induced foreign police to engage in conduct which shocked the conscience, then a Federal court might, in the exercise of its supervisory powers, refuse to allow the prosecution to enjoy the fruits of such action. The court noted that Birdsell was not such a case; neither is the instant case. In Sloane v. United States, supra, a Federal prohibition agent gave information obtained from an informant (concerning the location of a still) to a deputy sheriff. State officers obtained a search warrant, searched the premises, and seized evidence incriminating Sloane. The evidence was later turned over to the Federal agent for prosecution in Federal court. Sloane’s motion to suppress the evidence was denied. The court stated that a Federal agent must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizure. However, in Sloane the court held that the Federal agent neither ordered nor directed the" }, { "docid": "16028599", "title": "", "text": "and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods/which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.” Byars v. United States, supra [273 U.S. 28, 47 S.Ct. 250, 71 L.Ed. 520]. We think the evidence upon which appellant’s conviction rests was wholly inadmissible. To hold the contrary would be to give sanction to prohibited official action simply because accomplished by “indirect and circuitous methods”. The judgment appealed from is' reversed and the cause remanded with directions to the district court to sustain appellant’s motion to suppress the evidence. THOMAS, .Circuit Judge (dissenting). • In my opinion the judgment should be affirmed. It is settled by the decisions of the Supreme Court cited in the majority opinion that evidence of crime . discovered by a federal .officer in making a search with a warrant invalid under the Fourth Amendment to the Constitution is not admissible against the victim of the unlawful search over his timely objection; that the federal government may use evidence improperly seized by state officers operating entirely upon their own account; but evidence obtained, by state officers through wrongful search and seizure in cooperation with federal officials must be excluded. • Difficulty arises in applying these rules where it is claimed the unlawful seizure was made by the cooperation of the state and federal officials. In such a case if federal officials were present during the search, even though the search were made by the state officers, the evidence must be excluded. The same is true if the unlawful search were made by state officers under the direction of federal officers. But to exclude such evidence the search must be made solely on behalf of the United States. The evidence is admissible when a law of the state makes criminal the acts with which the defendant is charged and the seizure may have been made in enforcing the state law. Gambino v. United States, 275 U.S. 310," }, { "docid": "5327699", "title": "", "text": "warrant. The National Prohibition Act, October 28, 1919, 41 Stat 305, Title II, § 2, contemplated some cooperation between the state and Federal Governments in the enforcement of the act. At the time of the search, New York had repealed its prohibition act. The Supreme Court held the officers were not agents of the Federal Government but, nevertheless, the property taken in the seizure was inadmissible. Mr. Justice Brandéis, speaking for the Court, announced this rule: . . There is no suggestion that the defendants were committing, at the time of the arrest, search, and seizure, any state offense; or that they had done so in the past; or that the troopers believed that they had. Unless the troopers were authorized to make the arrest, search, and seizure, because they were aiding in the enforcement of a law of the United States, their action would clearly have been wrongful, even if they had had positive knowledge that the defendants were violating the Federal law. No Federal official was present at the search and seizure; and the defendants made no attempt to establish that the particular search and seizure was made in co-operation with Federal officials. But facts of which we take judicial notice (compare Tempel v. United States, 248 U. S. 121, 130, 39 S. Ct. 56, 63 L. Ed. 162), make it clear that the state troopers believed that they were required by law to aid in enforcing the National Prohibition Act; and that they made this arrest, search, and seizure, in the performance of that supposed duty, solely for the purpose of aiding in the Federal prosecution.” The closest case on facts I have been able to find is Byars v. United States, 273 US 28, 71 L ed 520, 47 S Ct 248. After reciting that the warrant used by the state officers was bad if tested by the Fourth Amendment and laws of the United States, the court quotes the testimony of the Federal prohibition agent and a state officer. From this testimony, it is apparent that the Federal official was asked to participate, and did" }, { "docid": "6155712", "title": "", "text": "therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clauses.” 338 U.S. at pages 27-28, 69 S.Ct. at page 1361. The Court next reasoned that in enforcing this constitutional prohibition the states are not required to forbid the use of wrongfully seized items in evidence, though the use of evidence obtained by violation of the Fourth Amendment is forbidden in the federal courts under the Weeks rule. The states may content themselves with other sanctions against unreasonable searches and seizures. So, the precise decision in the Wolf case was that a state need not exclude evidence obtained by unconstitutional means from its judicial proceedings. But, in ruling that the Fourth Amendment prohibition operates through the Fourteenth to make unreasonable state searches unconstitutional, the Court in Wolf overruled the very constitutional pronouncement and holding upon which the Weeks decision, and our Shelton decision following Weeks, had predicated the admissibility of state seized evidence in a federal trial. Oddly, even since the Wolf decision several Court of Appeals have followed Weeks as to the admissibility of evidence-obtained by state officers in federal trials, on the no longer tenable theory that the-Constitution does not prohibit unreasonable searches and seizures by state officers. E. g., Serio v. United States, 5 Cir., 1953, 203 F.2d 576, 578, certiorari denied 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 391; United States v. Moses, 7 Cir., 1956, 234 F.2d 124, 125; Gallegos v. United States, 10 Cir., 1956, 237 F.2d 694, 696. Overlooking the fact that since-the Wolf case an unreasonable state seizure must be recognized as a violation of the Constitution, these courts have failed' to come to grips with the problem whether there should be in the federal courts, a comprehensive rule that evidence obtained by invasion of a constitutional right, whether by a state or a federal officez’, is inadmissible. Cf. Jones v. United States, 8 Cir., 1954, 217 F.2d 381. On the other hand, since the Wolf case-justices of the Supreme Court have repeatedly recognized that it is no longer possible to accept" }, { "docid": "5275046", "title": "", "text": "the Nebraska judge had probable cause to issue the warrant to search Moore’s residence. The issue is whether the no-knock entry was lawful. A Nebraska statute expressly authorizes state officers to obtain a no-knock search warrant, as was done here. See Neb.Rev.Stat. § 29-411 (1983), quoted infra p. 848. Section 3109, which governs the permissible scope of no-knock searches by federal law enforcement officers, does not authorize no-knock search warrants. The government does not contest the district court’s conclusion that the no-knock entry in this case would have violated § 3109 if conducted by federal officers. Thus, the initial question is whether this federal statute was properly applied to exclude evidence seized by state officers acting under a search warrant issued pursuant to state law. III. The district court concluded that § 3109 governs the conduct of these Nebraska officials because this is a federal prosecution. We disagree. It is true that, if state officers seize evidence in violation of the Fourth Amendment and turn that evidence over to federal officers (a practice known, when lawful, as the “silver platter”), the evidence must be excluded in a resulting federal prosecution. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Supreme Court reaffirmed this principle, in the rather sweeping language quoted by the district court, in Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964): The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. However, the Supreme Court has only considered this question in the context of evidence seized by state officials in violation of the Fourth Amendment. Likewise, our prior cases applying the Elkins/Preston doctrine to exclude evidence seized by state officers from federal prosecutions have involved Fourth Amendment violations. See United States v. Keene, 915 F.2d 1164 (8th Cir.1990); United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108" }, { "docid": "22615598", "title": "", "text": "automobile after an unlawful search in which no federal officers had participated. The liquor was admitted in evidence against the defendants in their subsequent federal trial for violation of the National Prohibition Act. This Court reversed the judgments of conviction, holding that the illegally seized evidence should have been excluded. Pointing out that there was “no suggestion that the defendants were committing, at the time of the arrest, search and seizure, any state offense; or that they had done so in the past; or that the [state] troopers believed that they had,” the Court found that “[t]he wrongful arrest, search and seizure were made solely on behalf of the United States.” 275 U. S., at 314, 316. Despite these decisions, or perhaps because of them, cases kept arising in which the federal courts were faced with determining whether there had been such participation by federal officers in a lawless state search as to make inadmissible in evidence that which had been seized. And it is fair to say that in their approach to this recurring question, no less than in their disposition of concrete cases, the federal courts did not find themselves in complete harmony, nor even internally self-consistent. No less difficulty was experienced by the courts in determining whether, even in the absence of actual participation by federal agents, the state officers’ illegal search and seizure had nevertheless been made “solely on behalf of the United States.” But difficult and unpredictable as may have been their application to concrete cases, the controlling principles seemed clear up to 1949. Evidence which had been seized by federal officers in violation of the Fourth Amendment could not be used in a federal criminal prosecution. Evidence which had been obtained by state agents in an unreasonable search and seizure was admissible, because, as Weeks had pointed out, the Fourth Amendment was not “directed to” the “misconduct of such officials.” But if federal agents had participated in an unreasonable search and seizure by state officers, or if the state officers had acted solely on behalf of the United States, the evidence was not admissible" }, { "docid": "13106796", "title": "", "text": "there is participation on the part of federal officers it is not necessary to consider what would be the result if the search had been conducted entirely by State officers.” That statement in the Lustig case plus what was said in the Wolf case about the Fourteenth Amendment in connection with the search and seizure problem, has led counsel for the defendant in the instant case to believe that this Court should now hold that the heroin capsules taken from the defendant should have been suppressed on the ground that the arbitrary intrusion of the City detectives into his privacy was prohibited by the Fourteenth Amendment, which forbade the use of the capsules as evidence in the federal court, the same as though they had been obtained by federal officers in violation of the Fourth Amendment. It is our opinion that the rule as stated in the Byars case is still the law. We think that is indicated by what is said in Irvine v. California, on page 136 of 347 U.S., on page 385 of 74 S.Ct., and by the opinion of the four justices who dissented in the Lustig case, on pages 80-81 of 338 U.S., on pages 1374-1375 of 69 S.Ct., and also by the recent denials of certiorari in the cases of Serio v. United States, 5 Cir., 203 F.2d 576, certiorari denied 346 U.S. 887, 74 S.Ct. 144, and Fredericks v. United States, 5 Cir., 208 F.2d 712, certiorari denied 347 U.S. 1019, 74 S.Ct. 875, with notation that Mr. Justice Black and Mr. Justice Douglas were of the opinion that certiorari should be granted. The facts in the Serio case and the Fredericks case are substantially identical with the facts in the instant case, and the problem presented was no different. Each of the cases involved the discovery and seizure of contraband narcotics by state officers operating independently but without warrant or other authority, which narcotics the accused sought unsuccessfully to have suppressed as evidence. The procedural rules relative to the exclusion or suppression of evidence obtained through unlawful searches and seizures are judge-made" }, { "docid": "5317348", "title": "", "text": "that an occupant’s status in the United States is legal, then the purpose of the stop has been met, unless, of course, the officer has a reasonable suspicion that the occupant is involved in illegal activity. Then, naturally, the officer is justified in investigating into matters beyond the scope of the standard immigration check. United States Border Patrol agents are authorized by the Attorney General to assist her in carrying out her functions under the Controlled Substances Act, pursuant to Title ■ 21 of the United States Code, Section 873(b) and 965. Essentially, the Border Patrol agents have a limited authority and cross-designation with the Drug Enforcement Agency to (1) make arrests in the enforcement of the Controlled Substances Act and the Controlled Substances Import and Export Act; (2) conduct warrantless searches for evidence incident to arrest in the enforcement of the Acts; and (3) make seizures of the controlled substances and/or property pursuant to the provisions of the Acts. B. The Fourth Amendment and its Exceptions 2. The Fourth Amendment governs all searches and seizures conducted by government officials. It provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, U.S. Const., amend. IV. The Supreme Court has determined that a search without a warrant generally requires reasonable, but not certain, probable cause. See Carroll v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (finding that probable cause is the “reasonableness” standard for warrantless searches and seizures). An unlawful search or seizure does not preclude federal prosecution or any subsequent conviction, however, but instead the result of such a violation is the suppression of any illegally seized evidence. 3. It is surely undisputed that warrantless searches are per se unreasonable. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, it is also undisputed that warrant-less searches of vehicles are permitted by the Fourth Amendment provided, for instance, the officers have probable cause" }, { "docid": "8133267", "title": "", "text": "them. Under these circumstances, there was no error in admitting the knife in evidence. The Fourth Amendment to the Federal Constitution prohibiting unreasonable searches and seizures is not a limitation upon the powers of the state, and evidence obtained by state oificers entirely on their own account will not he excluded even though obtained during a search which, if conducted by federal officers, would have violated the constitutional provision. This rule, however, is not applicable to a search by state officers as the result of an understanding between them and federal officers that the federal offenses discovered by state officers will be prosecuted in the federal courts and where the federal officers adopt a prosecution originated by state officers as the result of a search made by them. In such a case the same rule as to the admissibility of the evidence obtained in the course of the search is applied as if the search were made by the federal officers themselves or under their direction. But there was no cooperation between the state and federal officers in this case, and the ordinary rule applicable to the use of evidence obtained by state officers in the course of an independent search by them is applicable. Kitt v. United States, 4 Cir., 132 F.2d 920; Sutherland v. United States, 4 Cir., 92 F.2d 305. ’ In his charge the judge -first stated the general principles which govern criminal trials and told the jury that the defendant was presumed to be innocent until proved to be guilty beyond a reasonable doubt, and that they were the sole judges of the weight and credibility of the evidence. He then read the statute and the indictment and explained them to the jury, and finally discussed the evidence in the following words: “Now, you have heard the testimony here of this defendant as to the situation in the place where he said he was gambling and drinking, and you heard the proprietor of the place say there was no gambling there, no drinks sold there at all. The old man said he was drunk, drinking" }, { "docid": "15849161", "title": "", "text": "and that they made this arrest, search, and seizure, in the performance of that supposed duty, solely for the purpose of aiding in the federal prosecution.” 275 U.S. 310, 335, 48 S.Ct. 137, 138. Our holding in Fowler v. United States, 7 Cir., 1932, 62 F.2d 656 was grounded on clear evidence of long established practice of cooperation between local police squads and federal prohibition officers. There we recounted daily conferences between city and federal authorities concerning violations of the National Prohibition Law in the City of Indianapolis. Here Stirsman relies upon a slender reed embedded in Aikman’s preliminary examination by the defense, with which to launch his demonstration of cooperation between law enforcing agencies. But that bit of Aikman’s testimony, just related, cannot be expanded to support defendant’s argument. No federal officers participated in, or were present at, the search of the Cadillac, on U. S. 36, or even thereafter at state police headquarters. This record fails to supply evidence demonstrative of any subterfuge employed by federal officers to circumvent Stirsman’s constitutional rights. Accord: United States v. Haywood, 7 Cir., 1953, 208 F.2d 156. We are satisfied that Aikman’s search is not imputable to the federal government. His activities simply produced a windfall of evidence used in this subsequent prosecution. Serio v. United States, 5 Cir., 1953, 203 F.2d 576. Aikman’s apprehension of Stirsman was consonant with several Indiana statutes concerning stolen motor vehicles. Evidence traced on this record concerning Stirsman’s activities among used car dealers; his abrupt departure, United States v. Heit-ner, 2 Cir., 1945, 149 F.2d 105, 107, from the last one, coupled with the distinguishing characteristics of this Cadillac, makes it abundantly clear that halting this automobile on U. S. 36 was not a random or indiscriminate sampling of motor vehicles from the population traveling on that public highway. Cf. Carroll v. U. S., 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Stirsman was traveling in the physical evidence bearing uncommon if not peculiar visible markings, with Aikman in pursuit of him. It would be unrealistic to insist, under the fluid state of affairs" }, { "docid": "6155713", "title": "", "text": "Appeals have followed Weeks as to the admissibility of evidence-obtained by state officers in federal trials, on the no longer tenable theory that the-Constitution does not prohibit unreasonable searches and seizures by state officers. E. g., Serio v. United States, 5 Cir., 1953, 203 F.2d 576, 578, certiorari denied 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 391; United States v. Moses, 7 Cir., 1956, 234 F.2d 124, 125; Gallegos v. United States, 10 Cir., 1956, 237 F.2d 694, 696. Overlooking the fact that since-the Wolf case an unreasonable state seizure must be recognized as a violation of the Constitution, these courts have failed' to come to grips with the problem whether there should be in the federal courts, a comprehensive rule that evidence obtained by invasion of a constitutional right, whether by a state or a federal officez’, is inadmissible. Cf. Jones v. United States, 8 Cir., 1954, 217 F.2d 381. On the other hand, since the Wolf case-justices of the Supreme Court have repeatedly recognized that it is no longer possible to accept the Weeks case as settling this problem of federal use of evidence procured by unreasonable state-search. Most recently, Mr. Chief Justice Warren has noted, ignoring the old Weeks ruling on the question, that “it has remained an open question in this-Court whether evidence obtained solely by state agents in an illegal search may be admissible in federal court despite the Fourth Amendment.” Benanti v. United States, 1957, 355 U.S. 96, 102 note 10, 78 S.Ct. 155, 158, 2 L.Ed.2d 126. Mr. Justice Frankfurter too has recognized the question as open, saying that “where there is participation on the part of federal officers it is not necessary to consider what would be the result if the search had been conducted entirely by State officers.” Lustig v. United States, 1949, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819. Even more striking are expressions of opinion by three other Justices. Mr. Justice Douglas, dissenting from the ultimate holding in Wolf v. People of State of Colorado, supra, tersely stated his conclusion that state and federal" }, { "docid": "22615656", "title": "", "text": "the Government respect for this Court’s weighty course of decisions and not a flouting of them. Whatever difficulties of application there may be in the present rule — and the opinions of those who have had to apply it do not indicate that they are significant— they surely cannot lead us to exchange a tried and settled principle for the Court’s new doctrine. For that doctrine, although the Court purports to be guided by the practical consequences of rules of evidence in this area and by considerations of comity between federal and state courts and policies, not only raises new and far greater difficulties than did the old rule, but is also pregnant with new disharmonies between federal and state authorities and between federal and state courts. First. The Court’s new rule introduces into the law governing the admissibility of search-and-seizure evidence in federal prosecutions a troublesome and uncertain new criterion, namely, the “unconstitutionality” of police conduct, as distinguished from its mere illegality under state or federal law. Under the rule the Court today announces, the federal trial court, whenever state-seized evidence is challenged, must decide the wholly hypothetical question whether that evidence was “obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment.” Irrelevant are violations of state law, or hypothetical violations of federal statutes, had the search been “conducted by federal officers.” The Weeks rule of exclusion, as enforced by this Court, applies to all illegal seizures on the part of federal officers. If the officer’s conduct is by statute or court-developed rule illegal, the evidence is excluded, and it is not necessary to say whether or not the rule of conduct flows directly from the Constitution. This has been an efficient, workable evidentiary criterion unencumbered with weighty constitutional distinctions. See, for example, Miller v. United States, 357 U. S. 301, where evidence was excluded without a mention of the Constitution. This Court or the lower federal courts have thus never, until today, needed to develop criteria distinguishing those federal" }, { "docid": "13711081", "title": "", "text": "agent in that area a tablet taken from the person of the appellant, which upon analysis proved to be morphine, which information was given to the state official. But the evidence showed that the federal agent merely sent the tablet to Louisville, Kentucky, as a sample, as was customary in all cases of samples received from police officers and private individuals, and that he had nothing to do with procuring the state search warrant thereafter and did not know where the appellant lived. There are a number of cases which hold that a long time understanding and practice between local police and federal officers, under which the local police arrest offenders and the prosecution is then taken over by the federal authorities if the offense is considered of sufficient importance to warrant federal prosecution, constitutes such participation in an illegal search incident thereto as to make the evidence inadmissible in a federal trial. Fowler v. United States, 7 Cir., 62 F.2d 656; Sutherland v. United States, 4 Cir., 92 F.2d 305; Lowrey v. United States, 8 Cir., 128 F.2d 477. The evidence in this case did not show such a situation. United States v. Scotti, D.C., 102 F.Supp. 747 (affirmed 5 Cir., 193 F.2d 644); United States v. Haywood, 7 Cir., 208 F.2d 156. Appellant also relies upon Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, in which evidence obtained as a result of wire tapping a telephone by state law enforcement officers pursuant to a state-court warrant authorized by state law, and without participation by federal authorities, was ruled inadmissible in a criminal trial in a federal court. But the basis of that ruling was that the evidence had been obtained by the state officers through violation of a federal statute, Section 605, Title 47 U.S.C.A., which contained an express, absolute prohibition against the divulgence of intercepted communications. The Court stated that its decision was not concerned with the scope of the Fourth Amendment. We are of the opinion that the District Judge was not in error in overruling appellant’s motion to suppress and" }, { "docid": "23401167", "title": "", "text": "decisions in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), holding that the fourth amendment, through the fourteenth amendment, prohibits unreasonable searches and seizures by state officers, and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), rejecting the silver platter doctrine and holding that evidence seized by state officers in violation of the fourth amendment is inadmissible in a federal criminal trial, all of this would have become merely an interesting historical footnote, were it not for the fact that the Federal Rules of Criminal Procedure had come into existence, and the exclusionary rule had been applied to their violation by federal officers. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (violation of Rule 5(a) requiring prompt arraignment). Rule 41 is of particular significance, because it governs the standards and procedures to be observed in conducting federal searches. Although the purpose of Rule 41 is the implementation of the fourth amendment, the particular procedures it mandates are not necessarily part of the fourth amendment. The states are not “precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures.” Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). Thus the temptation to federal officers to take advantage of more lenient or more flexible state procedures in the course of conducting a federal investigation is still a reality. While it is important not to stifle cooperation between federal and state officers, we think it clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct. The participation doctrine cases provide guidance here; when a federal officer has participated in a search in an official capacity, his or her conduct, and thus the legality of the search, is to be judged by federal standards. In this case, the investigation into the bank robberies, which" }, { "docid": "23380940", "title": "", "text": "a footnote in the Birdsell opinion, the court indicated that if Federal officials induced foreign police to engage in conduct which shocked the conscience, then a Federal court might, in the exercise of its supervisory powers, refuse to allow the prosecution to enjoy the fruits of such action. The court noted that Birdsell was not such a case; neither is the instant case. In Sloane v. United States, supra, a Federal prohibition agent gave information obtained from an informant (concerning the location of a still) to a deputy sheriff. State officers obtained a search warrant, searched the premises, and seized evidence incriminating Sloane. The evidence was later turned over to the Federal agent for prosecution in Federal court. Sloane’s motion to suppress the evidence was denied. The court stated that a Federal agent must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizure. However, in Sloane the court held that the Federal agent neither ordered nor directed the search, that there was no Federal participation, and the motion to suppress was properly denied. Other cases dealing with the “participation” question deserve brief mention. In Shurman v. United States, 219 F.2d 282 (5th Cir. 1955), a Federal narcotics officer informed a State officer he believed Shurman’s car contained narcotics. He did not request any action on the part of the State officer, merely gave the information. The State officer arrested Shurman, found narcotics in the car, and ultimately the case was turned over to Federal authorities for prosecution. The court, although finding that the search was illegal for lack of a warrant, admitted the evidence because no participation by Federal officers, or such cooperation between Federal and State authorities as to prevent the use of the evidence, was shown. Clearly, the giving of information, without more, does not amount to participation or make a later search a joint venture. In Symons v. United States, supra, Federal agents who arrived several hours after an initial search and seizure by State officers and took charge of" }, { "docid": "7127481", "title": "", "text": "suppress the evidence upon motion properly made, because of an illegal search and seizure in violation of the Fourth and Fifth Amendments. II. The prosecution failed to prove proper venue and place of the offense. III. The prosecution failed to prove that a notice and demand for an order form was made by the Collector of Internal Revenue upon the defendants in accordance with 26 U.S.C.A. § 2593(a). IV. The court erred in refusing to give certain instructions, and in giving certain erroneous instructions. Although we must reverse the judgment of the trial court on the second ground, we will discuss all of the assigned specifications of error for the guidance of the court on another trial. I. SEARCH AND SEIZURE: Two questions are presented here. The first is: Would the search as conducted by the state officers have been illegal if it had been conducted by federal officers ? The second is: If the search was illegal, was there such “cooperation” between the state and Federal officers as would proscribe the evidence when later offered in a federal prosecution? It is not necessarily true that if an illegal search is made by state officers the fruits of the search are suppressed when offered in evidence in a federal prosecution. Scotti v. United States, 5 Cir., 193 F.2d 644. As to the first of these two questions, our recent decision of Rent v. United States, 5 Cir., 209 F.2d 893, we believe to be controlling on the question of the lawfulness of the search by the state officers here. In that case the occupants of an automobile were arrested and the car was taken into custody, locked, and parked overnight in a police parking lot. We held that a search made the next morning without a warrant was unreasonable; even though the officers had grounds which seem as strong as those in the present case to believe there was marihuana in the car, the opportunity after the arrest to obtain a search warrant was a factor to be considered together with those grounds, in determining the reasonableness of the search." }, { "docid": "8054040", "title": "", "text": "premises searched or the property seized, and in the absence of such claim, cannot urge unreasonable search upon which to base a constitutional right.” To the same effect, see, also, Chepo v. United States, 3 Cir., 46 F.2d 70, 71; Shore v. United States, 60 App.D.C. 137, 49 F.2d 519, 522, certiorari denied 283 U.S. 685, 51 S.Ct. 656, 75 L.Ed. 1469; United States v. Crushiata, 2 Cir., 59 F.2d 1007. Again, in the instant case, we do not think there was such cooperation between the state and federal officials as would make this case subject to the Fourth Amendment so far as the federal criminal prosecution is concerned. Here the case was originally worked up by the police of the City of Hopewell, Virginia. The warrant in question was issued by the Trial Justice of Hopewell, upon the affidavit of Sergeant Russell of the Hopewell Police. The aid of officials of the Alcoholic Beverage Control Department of the State of Virginia was invoked only just before the raid and seizure, in which these officials did take an active part. Federal officials had no knowledge whatever of the pending raid and seizure, and did not come into the case until some time later. The stipulation here provides: “That there is no understanding or agreement between the Hopewell authorities and the federal authorities whereby they may prosecute in the federal courts violations of law discovered by them, and for seventeen years prior to this seizure there had been no such prosecution. “That there is no understanding between the State authorities and the federal authorities whereby the latter are obligated to take over prosecutions discovered by the former, but it is generally understood by State officers that when they have discovered a violation of federal as well as State law, they are at liberty to consult with the federal officers with a view to determining whether or not the federal officers adopt the case and institute a federal prosecution against the particular offenders; that they frequently do pursue this course and that frequently such cases are adopted by the federal authorities.” We" }, { "docid": "16028595", "title": "", "text": "United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381. But it is also held that where the state and federal officers have the understanding and operate under the practice revealed by the evidence in this case, under which the prosecution of the offender is invariably tendered to the federal officers and by them accepted if the offense is considered of sufficient importance, the evidence obtained in the course of the unlawful search by state officers must be excluded. Sutherland v. United States, 4 Cir., 92 F.2d 305; Byars v. United States, supra; Gambino v. United States, supra; Fowler v. United States, 7 Cir., 62 F.2d 656; Ward v. United States, 5 Cir., 96 F.2d 189. In Sutherland v. United States, supra [92 F.2d 307], the search and seizure was made by a state officer by whom the defendant was turned over to the federal officers for prosecution in the federal court. It was stipulated in the record “that state officers generally understood that where they have made a seizure of illicit liquor they are at liberty to consult with the federal officers with a view to determining whether or not the federal officers adopt the case and institute a federal prosecution against the particular offender; that they frequently do pursue this course and that frequently such cases are adopted”. The Circuit Court of Appeals for the Fourth Circuit held that the evidence obtained by the state officers in such circumstances was inadmissible in the federal prosecution, holding that the fact that there was such cooperation between the state and federal officers, as revealed in the stipulation quoted, required exclusion of the testimony. In Fowler v. United States, supra, the evidence revealed a long time definite understanding and practice between the state police and the federal prohibition officers whereby in the event the quantity of liquor seized was sufficiently large, the case was tendered to the federal officers and prosecuted by them. In holding the evidence secured by the state officers in an unlawful search and seizure by them as inadmissible in a federal prosecution the" }, { "docid": "7127488", "title": "", "text": "mere passing on of a tip as to the location of a still, by a federal to a state officer, followed by an illegal search by the state officer and federal adoption of the prosecution, did not alone constitute cooperation. In United States v. Lustig, 3 Cir., 159 F.2d 798, the Third Circuit decided that the passing on of information to state officers by a federal agent that persons he believed were guilty of a state offense were present in a certain hotel room, plus the fact that after apprehension of the suspected persons and an unlawful search revealing counterfeiting apparatus they were turned over for federal prosecution, did not add up to that degree of cooperation which would make the evidence seized inadmissible under the Fourth Amendment. The Sloane case was cited as authority for this. On certiorari to the Supreme Court, the case was reversed on a different ground. Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819. The ground of reversal was that the record showed that the federal officer, after Lustig’s arrest, entered the hotel room while the state officers were searching it, and participated in the search before it was completed, by evaluating the evidence as an expert on counterfeiting, as it was uncovered. The Supreme Court declined to pass on the principle relied upon by the Court of Appeals, 338 U.S. 79, 69 S.Ct. 1372; and thus, the reversal of Lustig’s conviction has not weakened the authority of the Sloane case. The reasoning of the Sloane case seems correct. We cannot denounce such exchange of information between law enforcement agencies where no attempt is otherwise shown to do indirectly what is prohibited to do directly. Furthermore, it should be noted that the basis of our holding herein that what was done here by the state officer was improper, is not that there was not probable cause for the search, but merely a failure to obtain a search warrant when it might well have been obtained, or to make a search of the car at the time of arrest. It would" }, { "docid": "22355645", "title": "", "text": "and search “ there were no federal officers present, and that we were not working in conjunction with federal officers ” must be taken to mean merely that the specific arrest and search was not directly participated in by any federal officer. We are of opinion that the admission in evidence of the liquor wrongfully seized violated rights of the defendants guaranteed by the Fourth and Fifth Amendments. The wrongful arrest, search and seizure were made solely on behalf of the United States. The evidence so secured was the foundation for the prosecution and supplied the only evidence of guilt. It is true that the troopers were not shown to have acted under the directions of the federal officials in making the arrest and seizure. But the rights guaranteed by the Fourth and Fifth Amendments may be invaded as .effectively by such cooperation, as by the state officers’ acting under direction- of the federal officials. Compare Silverthorne v. United States, 251 U. S. 385, 392. The prosecution thereupon instituted, by the federal au thorities was, as conducted, in effect a ratification of the arrest, search and seizure made by the troopers on behalf of the Uifited States. Whether the laws of the state actually imposed upon the troopers the duty of aiding the' federal officials in the enforcement of the National Prohibition Act we have no occasion to enquire. . The conclusion here reached is not in conflict with any of the earlier decisions of this Court in which evidence. wrongfully secured by persons other than federal officers has been held admissible in prosecutions for federal crimes. For in none of those cases did it appear that the search and seizure was made solely for the purpose of aiding the United States in the enforcement of its laws. In Weeks v. United States, 232 U. S. 383, the papers not ordered returned had been obtained by a policeman who searched the defendant’s home after his arrest by another state officer. ' Pp. 386, 398. It was not shown there that either the arrest or the search was made solely for" } ]

[ { "docid": "22096143", "title": "", "text": "additional cash.” Jimenez v. Richardson, 353 F. Supp., at 1361. From what has been outlined it emerges that afterborn illegitimate children are divided into two subclassifica-tions under this statute. One subclass is made up of those (a) who can inherit under state intestacy laws, or (b) who are legitimated under state law, or (c) who are illegitimate only because of some formal defect in their parents’ ceremonial marriage. These children are deemed entitled to receive benefits under the Act without any showing that they are in fact dependent upon their disabled parent. The second subclassification of afterborn illegitimate children includes those who are conclusively denied benefits because they do not fall within one of the foregoing categories and are not entitled to receive insurance benefits under any other provision of the Act. We recognize that the prevention of spurious claims is a legitimate governmental interest and that dependency of illegitimates in appellants’ subclass, as defined under the federal statute, has not been legally established even though, as here, paternity has been acknowledged. As we have noted, the Secretary maintains that the possibility that evidence of parentage or support may be fabricated is greater when the child is not born until after the wage earner has become entitled to benefits. It does not follow, however, that the blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimant, it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits, and it would discriminate between the two subclasses of afterborn illegit-imates without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses. The Secretary does not contend that it is necessarily or universally true that all illegitimates in appellants’ subclass would be unable to establish their dependency and eligibility under the Act if the statute gave them an opportunity to do so. Nor does he suggest a basis for the assumption" } ]

[ { "docid": "2514290", "title": "", "text": "23-24 and n. 11. Furthermore, the government asserts, most nations restricted the application of jus soli, the principle pursuant to which citizenship automatically devolves on those born on a country’s soil, to instances in which a child’s father was a citizen of the country. Id. at 24; Reply Brief for the United States at 8 (“[M]uch of the world in the nineteenth and early twentieth centuries ... did not confer citizenship by jus soli ... under these circumstances [of paternal alienage].”) (emphasis in original). Thus, the United States argues, by conferring citizenship on children born abroad only where the fathers of those children were American citizens, Congress largely avoided the problem of dual nationality. Since foreign countries were unlikely to confer citizenship on the children of American fathers, allowing those fathers to transmit their citizenship did not create a large class of dual nationals. Granting United States citizen mothers the same right to pass on their citizenship would, by contrast, have given rise to many instances of dual citizenship, as the foreign-born offspring would also have been treated as citizens of their fathers’ countries. The fact that the government’s proposed rationale for Section 1993’s gender-based distinction is nowhere stated in the text or legislative history of the statute is not fatal to the government’s argument. Where a statute is assessed pursuant to a deferential standard of review, “it is constitutionally irrelevant whether the justification proffered by the government was in fact the reasoning that generated the legislative classification.” Barajas-Guillen, 632 F.2d at 754. However, courts “need not in equal protection cases accept at face value assertions of legislative purposes, when ... the asserted purpose could not have been a goal of the legislation.” Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975). “ ‘[W]e [must be] careful not to attribute to the [government] purposes which it cannot reasonably be understood to have entertained.’ ” Christian Science Reading Room v. City and County of San Francisco, 792 F.2d 124, 124 (9th Cir.1986) (quoting Delaware River Basin Commission v. Bucks County Water" }, { "docid": "672313", "title": "", "text": "(1) (O). . See, e. g., Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) (Florida property tax exemption extended to widows but not widowers) ; Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert. denied sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S.Ct. 456, 21 E.Ed.2d 445 (1968) (women accorded more favorable treatment than men in computation of social security benefits) ; Kohr v. Weinberger, 378 F.Supp. 1299 (E. D.Pa.1974) (three-judge Court) (same type of contention as presented in Gruenwald). - This Court need not in equal protection eases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation. See Eisenstadt v. Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349] (1972) ; Jiminez v. Weinberger, 417 U.S. 628, 634 [94 S.Ct. 2496, 2500, 41 L.Ed.2d 363] (1974) ; V. S. Department of Agriculture v. Moreno, 413 U.S. 528, 536-37 [93 S.Ct. 2821, 2826-2827, 37 L.Ed.2d 782] (1973). . The discrimination which section 402(c) (1) (C) works against the female breadwinner readily distinguishes this case from Norton v. Weinberger, 390 F.Supp. 1084 (D.Md.1975), appeal pending, in which a divided three-judge panel of this Court upheld, in the face of an equal protection challenge, the provisions of 42 U.S.C. § 416(h) (3) (C) (ii), pursuant to which the legitimate children of insured individuals were accorded a statutory presumption of dependency not available to certain classes of illegitimate children. But see Lucas v. Secretary, 390 F.Supp. 1310 (D.R.I.1975) (Pet-tine, J.). . See the discussion infra at p. 132. . The dissenting opinion to the contrary, this case is thus a far cry from eases like Reed v. Reed, 404 U.S. 71, [92 S.Ct. 251, 30 L.Ed.2d 225], and Frontiero v. Richardson, 411 U.S. 677 [93 S.Ct. 1764, 36 L.Ed.2d 583], involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition — pregnancy—from the list of" }, { "docid": "22379982", "title": "", "text": "only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U. S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child’s equal recovery under a workmen’s compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U. S., at 173-174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterbom illegitimate children as to entitlement to a child’s disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents’ marriage, were eligible for benefits, even if they were born after the onset of the father’s disability. Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary’s claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion: “[T]he blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency] . Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits.” 417 U. S., at 636. Hence, it was held that “to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth" }, { "docid": "14232085", "title": "", "text": "the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628 [636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363] (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508 [513-514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767] (1973).” 422 U.S. at 772, 95 S.Ct. at 2470. The Court distinguished Vlandis on the ground that “the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible.” 422 U.S. at 772, 95 5. Ct. at 2470. I find some difficulty in so easily distinguishing Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), wherein the Court declared unconstitutional a provision of the Social Security Act which, in effect, precluded an illegitimate child born after the onset of the parent’s disability, from obtaining disability benefits, unless the child were eligible under other provisions of the Act regarding legitimization, inheritance or defective marriage ceremonies. The Jimenez Court concluded that the purpose of the statutory scheme was to prevent spurious claims and insure that only those actually entitled to disability benefits received such payments. The Court, distinguishing Dandridge on the ground that the purpose of the legislative provision in Jimenez did not concern the allocation of finite resources, gave considerable weight to the fact that the classification created an irrebuttable presumption, noting that the dilemma of noneligible illegitimate children “is compounded by the fact that the statute denies them any opportunity to prove dependency in order to establish their ‘claim’ to support and, hence, their right to eligibility.” 417 U.S. at 635, 94 S.Ct. at 2501. In this respect, the Court noted that: “It does not follow, however, that the blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimants, it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their" }, { "docid": "672312", "title": "", "text": "S.Ct. 2485, 41 L.Ed.2d 256 (1974) (Brennan, J., dissenting) ; Kahn v. Shevin, 416 U.S. 351, 358-59, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) (Brennan, J., dissenting) ; Frontiero v. Richardson, 411 U.S. 677, 682, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (Brennan, J.) (plurality opinion). . In a separate opinion in Goldfarb, Judge Moore reluctantly concurred in the light of the Supreme Court’s opinion in Wiesenfeld but set forth his concern in connection with the cost factors discussed infra. . See the observations in Frontiero, 411 U. S., at 689, n. 23, [93 S.Ct. 1764 at 1771], that in view of the large percentage of married women working (41.5% in 1971), the presumption of complete dependency of wives upon husbands has little relationship to present reality. In the same vein, Taylor v. Louisiana, 419 U.S. 522 [95 S.Ct. 692, 42 L.Bd.2d 690] (1975), observed that current statistics bely “the presumed role in the home” of contemporary women, 419 U.S., at 535, n. 17 [95 S.Ct. at 700]. . See 42 U.S.C. § 402(c) (1) (O). . See, e. g., Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) (Florida property tax exemption extended to widows but not widowers) ; Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert. denied sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S.Ct. 456, 21 E.Ed.2d 445 (1968) (women accorded more favorable treatment than men in computation of social security benefits) ; Kohr v. Weinberger, 378 F.Supp. 1299 (E. D.Pa.1974) (three-judge Court) (same type of contention as presented in Gruenwald). - This Court need not in equal protection eases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation. See Eisenstadt v. Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349] (1972) ; Jiminez v. Weinberger, 417 U.S. 628, 634 [94 S.Ct. 2496, 2500, 41 L.Ed.2d 363] (1974) ; V. S. Department of Agriculture v. Moreno, 413 U.S. 528, 536-37 [93 S.Ct. 2821, 2826-2827, 37" }, { "docid": "14232084", "title": "", "text": "of available funds and resources. Thus, the Court quoted extensively from its prior decisions in Flemming v. Nester, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (I960). Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Richardson v. Belcher, 404 U.S. 78, 81 [92 S.Ct. 254, 30 L.Ed.2d 231] (1971) and Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). Consistent with its emphasis that the claim in Salfi was distinguishable because social welfare legislation was involved, the Court declined to follow Stanley and LaFleur on the ground that, unlike the claims asserted in those cases, Salfi involved: “a noncontractual claim to receive funds from the public treasury [which] enjoys no constitutionally protected status, Dandridge v. Williams, supra, though of course Congress may not invidiously discriminate among such claimants on the basis of a ‘bare congressional desire to harm a politically unpopular group,’ United States Dept. of Agriculture v. Moreno, 413 U.S. 528 [534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782] (1973), or on the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628 [636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363] (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508 [513-514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767] (1973).” 422 U.S. at 772, 95 S.Ct. at 2470. The Court distinguished Vlandis on the ground that “the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible.” 422 U.S. at 772, 95 5. Ct. at 2470. I find some difficulty in so easily distinguishing Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), wherein the Court declared unconstitutional a provision of the Social Security Act which, in effect, precluded an illegitimate child born after the onset of the parent’s disability, from obtaining disability benefits, unless the child were eligible under other provisions of the Act regarding legitimization, inheritance or defective marriage ceremonies." }, { "docid": "19127754", "title": "", "text": "on the ground that the statute “prevented] the applicants from incurring new support obligations.” 434 U.S. at 390, 98 S.Ct. 673. “But the challenged provisions,” the Court explained, “are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage.” Id. Similarly, in Eisenstadt, the Court rejected the argument that unmarried individuals might be prohibited from using contraceptives based on the view that contraception is immoral. See 405 U.S. at 452-54, 92 S.Ct. 1029. The Court held that “the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious.” Id. at 454, 92 S.Ct. 1029; see also Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (provision of Social Security Act allowing certain illegitimate children benefits under limited circumstances held impermissibly “underinclusive in that it conclusively excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their disabled parent” (quotation omitted)). A state may not impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who share a characteristic urged to be relevant. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Eisenstadt, 405 U.S. at 454, 92 S.Ct. 1029 (quoting Ry. Express Agency v. New York, 336 U.S. 106, 112-13, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring)). A hypothetical state law restricting the institution of" }, { "docid": "7866618", "title": "", "text": "with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Id. at 331-32, 101 S.Ct. at 2386 (emphasis added). Judicial review under the rational relation standard has never been entirely “toothless,” however. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (Social Security statute held unconstitutional, despite application of mere rationality test, because evidence did not justify differential treatment of two similarly situated groups of illegitimates); United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 538, 93 S.Ct. 2821, 2827, 37 L.Ed.2d 782 (1973) (food stamp statute invalidated because proffered justifications were “wholly without any ration al basis”); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16, 95 S.Ct. 1225, 1233 n.16, 43 L.Ed.2d 514 (1975) (“[t]his Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation”). In recent decisions, the Supreme Court has demonstrated some uncertainty as to the precise nature of rational relation review. While some Justices, following Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911), would uphold a legislative classification “if any state of facts reasonably can be conceived that would sustain it,” id. at 78, 31 S.Ct. at 340, other members of the Court would require that an economic and social classification “rest upon some ground of difference having a fair and substantial relation to the object of the legislation,” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). Compare United States R. R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981), and City of Mesquite v. Aladdin’s Castle, Inc., - U.S. -, -, 102 S.Ct. 1070, 1077, 71" }, { "docid": "2746950", "title": "", "text": "In holding otherwise, according to McNeilus, the district court unjustifiably assumed a proper public purpose for the license requirements in pro- teeting Ohio consumers, whereas the only evidence indicates an intent to insulate Ohio chassis dealers from competition. McNeilus asks this court to look behind the stated purpose of the statute to whether the hidden purpose is legitimate; how-eyer, for purposes of equal protection analysis, we must assume that the state’s stated purposes are the actual ones, unless those purposes “could not have been a goal of the legislation.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n. 7, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). McNeilus would have to demonstrate that the legislative facts asserted by the state “could not reasonably be conceived to be true,” which it has not done, in order for this court to abandon the assumptipn that the stated purposes are the actual ones. Clover Leaf Creamery, 449 U.S. at 464, 101 S.Ct. 715, quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). We then ask whether the stated purposes are legitimate public purposes; we do not assume it. This explains why McNeilus’s reliance on Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985), is misplaced. In striking down a differential tax on out-of-state insurers on equal protection grounds, the Supreme Court did not look behind the stated purposes of the statute. Rather, it determined that the stated purposes of promoting domestic industry and local investment in a purely discriminatory fashion were illegitimate. Indeed, they were deemed the “very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.” Id. at 879, 105 S.Ct. 1676. In this case, as the district court determined, the stated purpose of assuring “that a purchaser of a concrete transit mixer or refuse packer should have reasonable access to a manufacturer or dealer which is authorized to repair a defective chassis under warranty” is a" }, { "docid": "6765585", "title": "", "text": "concluding that the denial of social security benefits to certain types of deportees was rational because the benefits would not have added to the “overall national purchasing power,” Justice Harlan wrote that it was “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.” Id. at 612, 80 S.Ct. at 1373. On this theory, a court may discern a valid purpose even in the face of legislative silence, with the court’s imagination supplying the only bounds to the range of purposes that might be attributed. During the twenty years since Flemming, however, the Supreme Court has sometimes indicated that rationality analysis must consider the actual purposes of the legislature, rather than post hoc justifications offered by government attorneys or hypothesized by the court itself. For instance, in Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16, 95 S.Ct. 1225, 1233 n.16, 43 L.Ed.2d 514 (1975), the Court, through Justice Brennan said: This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrated that the asserted purpose could not have been a goal of the legislation. And in McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059-1060, 35 L.Ed.2d 282 (1973), the Supreme Court indicated that a challenged classification will survive rationality analysis when it “rationally furthers some legitimate, articulated state purpose.” See also id. at 276, 93 S.Ct. at 1062 (purpose upholding a statutory class must be “legitimate and nonillusory”); San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973) (classification must further a “legitimate, articulated purpose”). Significantly, the Supreme Court, while testing the constitutionality of a “grandfather” provision, has emphasized the importance of articulating the legislative purpose. In United States v. Maryland Savings-Share Insurance Corp. (MSSIC), 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970) (per curiam), the Court upheld a section of the Internal Revenue Code that exempted from taxation any nonprofit corporation that insured savings institutions, provided the corporation existed as of September 1, 1957. The Court observed that “the" }, { "docid": "7657106", "title": "", "text": "S.Ct. 1881, 44 L.Ed.2d 508 (1975); Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Gurley v. Rhoden, 421 U.S. 200, 208, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975). Where, as in the instant case, it is necessary to determine what governmental objections are sought to be served by a particular state statute, the views of the highest state court should also be given careful consideration. Reitman v. Mulkey, 387 U.S. 369, 376-79, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Of course, we need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrate that the asserted purpose could not have been a goal of the legislation. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Jimenez v. Weinberger, 417 U.S. 628, 634, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536, 537, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Weinberger v. Weisenfeld, 420 U.S. 636, 648 (1975). In Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), the court followed the “inquiry into actual purposes” approach of Weisenfeld to conclude that the intent of Congress differed from that represented by the Government. In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the purpose of the enhancement of traffic safety that was suggested by the Oklahoma Attorney General was accepted as the basis for disposition of the case on the ground that the gender-based distinction contained in the challenged statute did not closely serve to achieve that objective.4 ****** Likewise, in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), involving a challenge to the constitutionality of Alabama alimony statutes, the Supreme Court conceded the legitimacy of certain of the legislative objectives behind these statutes as proffered by the Alabama Court of Civil Appeals, and focused its analysis primarily on whether the gender-based classification therein was substantially related to achievement of those objectives. The case" }, { "docid": "17612735", "title": "", "text": "of their families “is not entirely without empirical support,” nevertheless, such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families’ support. 420 U.S. 645, 95 S.Ct. 1232. The Court rejected the argument that the noncontractual nature of Social Security benefits permitted Congress to provide a covered female employee with fewer benefits than it provided for a covered male. It also rejected the contention that the classification under attack was one “reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families.” 420 U.S. 648, 95 S.Ct. 1233. The Court held that “the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” 420 U.S. 648, 95 S.Ct. 1233. The Court reasoned that “[g]iven the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of 402(g) is entirely irrational.” 420 U.S. 651, 95 S.Ct. 1235. The Court concluded: Since the gender-based classification of § 402(g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, “[b]y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the [Due Process] Clause.” Reed v. Reed, 404 U.S. 71, 77 [92 S.Ct. 251, 254, 30 L.Ed.2d 225] (1971). 420 U.S. 653, 95 S.Ct. 1236. The same reasoning applies here. The legislative history of the provision of the Railroad Retirement Act challenged here suggests no reason for the discriminatory treatment of male and female employees with respect to the spouse’s annuity. The House Committee omitted a spouse’s annuity that had been proposed in an earlier draft of H.R. 3669 because the provision was considered too controversial. The Committee Report stated that the spouse’s annuity was “opposed as being unfair to unmarried men.” 1951 Code Cong." }, { "docid": "6765584", "title": "", "text": "a legitimate goal that is furthered by exempting certain users of Basin waters from the charges shouldered by others. Consequently, if the challenged “grandfather” exemption is to survive rationality review, we must look elsewhere to find the governmental purposes which it helps secure. IV Traditionally, in the absence of an articulated purpose in the legislation or in its history, courts have upheld challenged provisions that furthered the attainment of goals either suggested by the parties or postulated by the reviewing court itself. Before examining whether Section 15.1(b) and Resolution 74-6 advance purposes that might be hypothesized in these ways, we must consider the propriety in this case of such speculation about legislative ends. The Supreme Court has on occasion expressed a willingness to sustain a classification that serves some conceivable purpose, even though the Court has no assurance that the purpose entered the mind of even a single legislator. Perhaps the clearest expression of this viewpoint came from Justice Harlan in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In concluding that the denial of social security benefits to certain types of deportees was rational because the benefits would not have added to the “overall national purchasing power,” Justice Harlan wrote that it was “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.” Id. at 612, 80 S.Ct. at 1373. On this theory, a court may discern a valid purpose even in the face of legislative silence, with the court’s imagination supplying the only bounds to the range of purposes that might be attributed. During the twenty years since Flemming, however, the Supreme Court has sometimes indicated that rationality analysis must consider the actual purposes of the legislature, rather than post hoc justifications offered by government attorneys or hypothesized by the court itself. For instance, in Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16, 95 S.Ct. 1225, 1233 n.16, 43 L.Ed.2d 514 (1975), the Court, through Justice Brennan said: This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and" }, { "docid": "2514291", "title": "", "text": "have been treated as citizens of their fathers’ countries. The fact that the government’s proposed rationale for Section 1993’s gender-based distinction is nowhere stated in the text or legislative history of the statute is not fatal to the government’s argument. Where a statute is assessed pursuant to a deferential standard of review, “it is constitutionally irrelevant whether the justification proffered by the government was in fact the reasoning that generated the legislative classification.” Barajas-Guillen, 632 F.2d at 754. However, courts “need not in equal protection cases accept at face value assertions of legislative purposes, when ... the asserted purpose could not have been a goal of the legislation.” Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975). “ ‘[W]e [must be] careful not to attribute to the [government] purposes which it cannot reasonably be understood to have entertained.’ ” Christian Science Reading Room v. City and County of San Francisco, 792 F.2d 124, 124 (9th Cir.1986) (quoting Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087, 1097 (3rd Cir.1981), cert. denied, 479 U.S. 1066, 107 S.Ct. 953, 93 L.Ed.2d 1002 (1987)). The district court properly recognized that “[t]he Congress has an appropriate concern with problems attendant on dual nationality.” Rogers v. Bellei, 401 U.S. 815, 831, 91 S.Ct. 1060, 1069, 28 L.Ed.2d 499 (1971). However, it rejected the government’s argument in support of Section 1993 because it could not accept the assertion that most nations in the late nineteenth and early twentieth centuries would not have recognized a child born on their soil to a United States citizen father to be one of their own. The court found that “[i]n most countries, that child would also have gained the citizenship of his or her birthplace.” Wauchope, 756 F.Supp. at 1283-84; see also id. at 1284 n. 4 (“At the time § 1993 was in effect, the great majority of nations transmitted citizenship under jus soli or a limited variant of that rule.”). Thus, it concluded that a desire to avoid the complications of dual citizenship" }, { "docid": "7866617", "title": "", "text": "state were subsidizing at uneven rates two alternatives where the choice between -those alternatives was constitutionally protected. Even were that the case here, however, it is not clear that the State would be deemed to have infringed on the right to make that choice. See Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (holding that the federal government may subsidize childbirth without also subsidizing abortion); see also Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). . The deference accorded legislators under the rational basis test was perhaps most strongly stated in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961): “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Id. at 426, 81 S.Ct. at 1105 (emphasis added). See also Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981): “Social and economic legislation [that] does not employ suspect classifications or impinge on fundamental rights ... carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Id. at 331-32, 101 S.Ct. at 2386 (emphasis added). Judicial review under the rational relation standard has never been entirely “toothless,” however. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (Social Security statute held unconstitutional, despite application of mere rationality test, because evidence did not justify differential treatment of two similarly situated groups of illegitimates); United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 538, 93 S.Ct. 2821, 2827, 37 L.Ed.2d 782 (1973) (food stamp statute invalidated because proffered justifications were “wholly without any ration al basis”); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16, 95 S.Ct. 1225, 1233 n.16, 43 L.Ed.2d 514 (1975) (“[t]his Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation”). In recent" }, { "docid": "7657105", "title": "", "text": "opinion of the district court and the arguments put forth by the appellees on brief rely so heavily upon the analysis of the legislative purposes behind 17 M.R.S.A. § 3151 articulated by the Maine court in Rundlett, supra, we are faced with deciding how much deference we should accord its conclusions. Such a determination cuts to the heart of the ongoing interplay between state and federal judiciaries. It is well-established law that “state courts are the ultimate expositors of state law” and the federal courts are bound by the constructions placed upon state statutes by state courts absent extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975); Pagan Torres v. Negron Ramos, 578 F.2d 11, 14 (1st Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1978). “Construction” in this sense refers to the structure of a statute, what its words mean, and how it operates. See, e. g. Wilbur v. Mullaney, 496 F.2d 1303, 1305 (1st Cir. 1974), aff’d, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Gurley v. Rhoden, 421 U.S. 200, 208, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975). Where, as in the instant case, it is necessary to determine what governmental objections are sought to be served by a particular state statute, the views of the highest state court should also be given careful consideration. Reitman v. Mulkey, 387 U.S. 369, 376-79, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Of course, we need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrate that the asserted purpose could not have been a goal of the legislation. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Jimenez v. Weinberger, 417 U.S. 628, 634, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536, 537, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Weinberger v. Weisenfeld," }, { "docid": "4403922", "title": "", "text": "the Government had “failed to set forth a facially legitimate and bona fide reason to justify the statute’s unequal treatment of citizen men and women.” Id. at 1416. We now turn to the case before us to determine whether the government has proposed a rational basis for the statute here in question. There are two prongs to the condition imposed upon illegitimate children by section 205 of the Act: proof of paternity, and the time limit for legitimation. In reviewing the two prongs, two questions must be considered: 1) is there a rational basis for the distinction between legitimate and illegitimate children? and 2) is there a rational basis for the distinction between illegitimate children bom to United States citizen mothers and those born to United States citizen fathers? Ablang argues that there is no rational basis for the paternity requirement because in her case there is no unresolved question of paternity: the Government concedes that she is the daughter of Walter Simmerson, a United States citizen who was eligible to transmit his citizenship to Ablang at birth. Ablang misses the point; the peculiarities of her case are not decisive. Rather, there must be some discernible rational basis for the legislature’s decision to distinguish the class to which she belongs. The Congress need not have stated its rationale for the distinction in the text or legislative history. ‘Where a statute is assessed pursuant to a deferential standard of review, ‘it is constitutionally irrelevant whether the justification proffered by the government was in fact the reasoning that generated the legislative classification.’ ” Id. at 1415 (quoting United States v. Barajas-Guillen, 632 F.2d 749, 754 (9th Cir.1980)). “However, courts ‘need not in equal protection cases accept at face value assertions of legislative purposes, when ... the asserted purpose could not have been a goal of the legislation.’” Id. (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975)). We conclude there is a rational basis for the statute’s requirement of proof of paternity. Clearly, an illegitimate child cannot claim citizenship via jus" }, { "docid": "22738285", "title": "", "text": "the family and the wife was the homemaker, benefits were provided for wives, widows, and children on the basis of presumed dependency on the husband . . . See supra, at 644. There has been a continuing tension in the OASDI system between two goals: individual equity, which accords benefits commensurate with the contributions made to the system, and social adequacy, which assures to all contributors and their families a tolerable standard of living. See J. Pechman, H. Aaron & M. Taussig, Social Security: Perspectives for Reform 33-34 (1968); Report of the Social Security Board, H. R. Doc. No. 110, 76th Cong., 1st Sess., 5 (1939). Rather than abandoning either goal, Congress has tried to meet both, by assuring that the protection afforded each contributor is at least that which his contributions could purchase on the private market. See H. R. Rep. No. 728, 76th Cong., 1st Sess., 13-14 (1939); H. R. Rep. No. 1300, 81st Cong., 1st Sess., 2 (1949). See 42 U. S. C. §§ 414, 415 for the correlation between years worked, amount earned, and the “primary insurance amount,” which is the amount received by fully insured employees upon reaching retirement age. Benefits under § 402 (g) are 75% of the primary insurance amount of the covered employee. This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation. See Eisenstadt v. Baird, 406 U. S. 438 (1972); Jimenez v. Weinberger, 417 U. S., at 634; U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 536-537 (1973). In certain cases, mother’s benefits under § 402 (g) cease although some children are still eligible for children’s benefits under §402 (d). In particular, children continue to be eligible for benefits while full-time students until age 22 and, in some instances, for a few months thereafter. §§ 402 (d) (1) (F) and (d)(7). Yet, benefits to the mother under § 402 (g) cease if all children have reached 18" }, { "docid": "22738286", "title": "", "text": "amount earned, and the “primary insurance amount,” which is the amount received by fully insured employees upon reaching retirement age. Benefits under § 402 (g) are 75% of the primary insurance amount of the covered employee. This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation. See Eisenstadt v. Baird, 406 U. S. 438 (1972); Jimenez v. Weinberger, 417 U. S., at 634; U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 536-537 (1973). In certain cases, mother’s benefits under § 402 (g) cease although some children are still eligible for children’s benefits under §402 (d). In particular, children continue to be eligible for benefits while full-time students until age 22 and, in some instances, for a few months thereafter. §§ 402 (d) (1) (F) and (d)(7). Yet, benefits to the mother under § 402 (g) cease if all children have reached 18 and are not disabled. §402 (s)(l). This distinction also sustains our conclusion that § 402 (g) was intended only to provide an opportunity for children to receive the personal attention of one parent, since mother’s benefits are linked to children’s benefits only so long as it is realistic to think that the children might need their parent at home. Originally, no divorced wives were entitled to benefits on the basis of their former husbands’ earnings. The provision for surviving divorced wives who are the mothers of children entitled to survivors’ benefits was added in 1950. Social Security Amendments of 1950, § 101 (a), 64 Stat. 483. It was not until 1965 that benefits were provided for aged divorced wives and widows, premised upon a 20-year marriage. Social Security Amendments of 1965, Pub. L. 89-97, § 308, 79 Stat. 375. Both these groups of women were required to prove dependency upon the former husband. The proof-of-dependency requirements were eliminated in 1972. Social Security Amendments of 1972, Pub. L. 92-603, § 114, 86 Stat. 1348. This separate" }, { "docid": "4403923", "title": "", "text": "Ablang at birth. Ablang misses the point; the peculiarities of her case are not decisive. Rather, there must be some discernible rational basis for the legislature’s decision to distinguish the class to which she belongs. The Congress need not have stated its rationale for the distinction in the text or legislative history. ‘Where a statute is assessed pursuant to a deferential standard of review, ‘it is constitutionally irrelevant whether the justification proffered by the government was in fact the reasoning that generated the legislative classification.’ ” Id. at 1415 (quoting United States v. Barajas-Guillen, 632 F.2d 749, 754 (9th Cir.1980)). “However, courts ‘need not in equal protection cases accept at face value assertions of legislative purposes, when ... the asserted purpose could not have been a goal of the legislation.’” Id. (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975)). We conclude there is a rational basis for the statute’s requirement of proof of paternity. Clearly, an illegitimate child cannot claim citizenship via jus sanguinis until her parentage is established. In the ease of legitimate children, most states make a presumption of paternity (rebuttable or otherwise) that determines the husband to be the child’s legal father. When children are born out of wedlock, there is no such presumption, and the Government naturally requires proof of paternity before determining someone to be the legal father. While in Ablang’s case, her connection to both her mother and her father was broken early in infancy, in most cases there is a reasonable expectation that the illegitimate child’s maternal descent will be easier to trace than her paternal descent. The birth certificate (destroyed in Ablang’s case by white ants, according to records officials) as a rule lists the name of the birth mother. As for the time limitation, the Government observes that proof may be harder to obtain as the years go by, and suggests that Congress has an interest in promoting “close family ties.” The Government cites the following notes from Fiallo in support of its conclusions: The inherent difficulty of determining" } ]

[ { "docid": "4234777", "title": "", "text": "government counsel to the ease. On April 18, 2000, appellant filed an opposition to the Government’s April 11 motion to attach. Appellant argued, variously, that since the Government had not responded to appellant’s motion to recuse Judge Dorman at the NMCCA, it should not be allowed to submit affidavits now; that there is, in any event, “nothing in the instant affidavits that presents anything new for this Court to review”; and that this Court should not be engaging in factfinding. Appellant moved, instead, that we “simply remand the case for consideration by a new [NMCCA] panel”; in other words, that we set aside the decision below. On May 3, 2000, we heard oral argument in the case. There, appellate defense counsel conceded that Col Dorman took no action in appellant’s case while assigned to Appellate Government, and that, indeed, no action at all was taken in appellant’s case by Appellate Government until after Col Dorman departed the Division. In addition, appellate defense counsel did not dispute that it was the Government’s policy to take no action in cases until an eighth motion for enlargement of time was filed or an initial brief was filed by an appellant. As previously indicated, the “facts” of this appeal are essentially stipulated or unrebutted. See United States v. Ginn, 47 MJ 236, 241-42 n. 4 (1997). The thrust of appellant’s contention is that Appellate Government’s receipt of a copy of his record of trial while Col Dorman was still Director of the Division, without more, mandated his recusal as judge, notwithstanding that the record remained in storage and unreviewed until after his departure from the Division. Ill Title 28 USC § 455 provides, in pertinent part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in" } ]

[ { "docid": "22807997", "title": "", "text": "§ 455(a). Section 455(a) provides, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Thus, the standard of review for a § 455(a) motion “is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality,” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988), and any doubts must be resolved in favor of recusal, United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989). On the contrary, a judge should recuse himself under § 455(b) when any of the specific circumstances set forth in that subsection exist, which show the fact of partiality. 28 U.S.C. § 455(b)(1)-(5). For example, a judge should recuse himself “[wjhere he has a personal bias or prejudice concerning a party” or “[w]here in private practice he served as [a] lawyer in the matter in controversy.” Id. § 455(b)(1)-(2). Recusal under this subsection is mandatory, because “the potential for conflicts of interest are readily apparent.” Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir.2001) (internal quotation marks omitted). Thus, the differences between the two subsections are evident. While subsection (b) sets forth specific circumstances requiring recusal, which establish the fact of partiality, subsection (a) sets forth a general rule requiring recusal in those situations that cannot be categorized neatly, but nevertheless raise concerns about a judge’s impartiality. See 28 U.S.C. § 455(a)-(b). Although both subsections provide reasons for recusal, subsection (b) is stricter than subsection (a) because the need for a judge’s recusal under subsection (b) is clear; once it has been established that one of the enumerated circumstances exists, there can be no dispute about the propriety of recusal. Under subsection (a), however, whether recusal is necessary is not as" }, { "docid": "11522936", "title": "", "text": "whether Texaco's provision of minor general funding would alter the outcome if general funding were used to finance the seminar. Judge Rakoff also stated that he did not know that FREE had received funds from Texaco prior to petitioners’ motion. His lack of knowledge, however, is irrelevant in light of Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), in which the Supreme Court held that \"[s]cienter is not an element of a violation of § 455(a),” id. at 859, 108 S.Ct. 2194, which requires disqualification \"in any proceeding in which [the judge’s] impartiality might reasonably be questioned,” 28 U.S.C. § 455(a). Rather, the Court held, \"advancement of the purpose of the provision — to promote public confidence in the integrity of the judicial process — does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew.” 486 U.S. at 859-60, 108 S.Ct. 2194 (citations omitted). . Section 455(b) states: He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within" }, { "docid": "9663293", "title": "", "text": "has learned from his participation in the case.” Grinnell, 384 U.S. at 583, 86 S.Ct. at 1710. Title 28, United States Code, Section 455 provides that “(a) [a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned ... [or] (b) [w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. §§' 455(a)-(b). In enacting Section 455(a), which mandates recusal where there exists a factual basis for doubting a judge’s impartiality, Congress hoped to foster public confidence in the judiciary. See Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 847-48, 108 S.Ct. 2194, 2195, 100 L.Ed.2d 855 (1988). Section 455 conforms to Canon 3(C)(1) of the ABA Code of judicial conduct. See Helmsley, 760 F.Supp. at 341. When construing whether recusal is appropriate under Section 455(a), courts are to apply an objective test that “assumes that a reasonable person knows and understands all the relevant facts.” Drexel, 861 F.2d at 1313 (emphasis in original). Under such a standard, a judge must consider not only whether actual prejudice exists, but must also determine whether there exists the appearance of impartiality. See Johnpoll, 748 F.Supp. at 90; Lamborn, 726 F.Supp. at 516. Respondents have failed to allege any facts that would support a finding that recusal is appropriate. Respondents have wholly failed to satisfy the reqúirements of Section 144. They have not even attempted to set forth facts and reasons that support the bias charge, and Respondents’ attorney has failed to file a certificate that Respondents’ affidavit alleging bias was made in good faith. Finally, Respondents do not point to an extrajudicial source for my alleged prejudice. Thus, Respondents’ recusal motion does not satisfy the threshold requirements of Section 144. Similarly, Respondents have failed to satisfy Section 455. Respondents have not shown that my impartiality might reasonably be questioned nor, as I already have'stated, have Respondents submitted any facts that would cast doubt on my impartiality. In fact, I am not biased or prejudiced in favor, or against, any party to, or participant in, this action." }, { "docid": "13523543", "title": "", "text": "that case, and so affirm the district court’s denial of a jury trial in the instant case. Although one judge on this panel dissented in Ben-check, we deny defendant’s proposal that we request review by the in banc court. II Defendant argues that the district judge erred in not recusing himself from defendant’s trial; this issue we review for abuse of discretion. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992). The applicable statute governing recusal provides that: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; 28 U.S.C. § 455(a), (b)(1). This statute is intended “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 2203, 100 L.Ed.2d 855 (1988). The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists. Id. (quoting Health Servs. Acquisition Corp., v. Liljeberg, 796 F.2d 796, 802 (5th Cir.1986)). “The test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Hinman v. Rogers, 831 F.2d 987, 939 (10th Cir.1987). This objective standard requires- a factual basis for questioning the judge’s impartiality. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993). We have held that under either 28 U.S.C. § 144 or § 455, the party seeking recusal must act in a timely fashion to request recusal. Willner v. University of Kansas, 848 F.2d 1023, 1028 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989); Singer v. Wadman, 745 F.2d 606, 608 (10th Cir.1984), cert. denied, 470 U.S. 1028," }, { "docid": "22432206", "title": "", "text": "made in this ease which will require federal judge Thomas R. Brett to review actions in which Tom Brett was involved while sitting on the Oklahoma Court of Criminal Appeals.” Id., Doc. 114 at 3. Petitioners expressed their concern that “a decision making process involving a familial relationship between a sitting judge and a defendant presents at least the appearance of possible bias.” Id. Judge Brett declined to recuse himself because “in the habeas field ... it’s just a matter of reviewing [the] opinions [of the Oklahoma Court of Criminal Appeals].” Tr. 4/6/93 at 101. Judge Brett did agree, however, that though his uncle had died a few months earlier, he should not be involved in any damage claims against his uncle personally. Id. On appeal, petitioners argue that Judge Brett erred in not recusing himself on the habeas, as well as the damage, claims. In light of this error, petitioners request that we set aside any findings or conclusions by the three-judge district court panel that are unfavorable to petitioners. Though we conclude that Judge Brett erred in failing to disqualify himself in light of the allegations at issue in these eases, under the particular circumstances presented, we decline to set aside any findings or conclusions of the three-judge panel on that basis. Section 455 provides in pertinent part as follows: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party[J 28 U.S.C. § 455 (emphasis added). The general purpose of § 455(a) is “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2202 n. 7, 100 L.Ed.2d 855 (1988). Thus, the section is designed to eliminate “even" }, { "docid": "22432271", "title": "", "text": "P. Patterson, Jr., of the Southern District. On June 21, Bayless pleaded guilty before Judge Patterson to the counts in the indictment, subject to a stipulation that she be allowed to appeal the outcome of her suppression motion, and on October 1, 1998, she was sentenced to fifty-four months in prison. DISCUSSION On appeal, Bayless argues (1) that Judge Baer was required to recuse himself sua sponte before deciding the government’s motion for reconsideration; (2) that the failure of her counsel below to file a motion for recusal prior to Judge Baer’s ruling on that motion constituted ineffective assistance of counsel; (3) that Judge Baer erred when he reopened the suppression hearing at the government’s request; and (4) that Judge Baer’s final disposition of the merits of her suppression motion was erroneous, because the police officers had no reasonable suspicion to stop her car on the morning of the arrest. A. Recusal 1. The statutory scheme. — Bay-less’s claim that Judge Baer should have recused himself rests on 28 U.S.C. § 455(a) (1994), which provides simply: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. Notably, under § 455(a), recusal is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself whenever an objective, informed observer could reasonably question the judge’s impartiality, regardless of whether he is actually partial or biased. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Section 455(a) complements § 455(b), which addresses the problem of actual bias by mandating recusal in certain specific circumstances where partiality is presumed. See 28 U.S.C. § 455(b) (requiring recusal when, inter alia, a judge has “a personal bias or prejudice concerning a party”). Section 455 was enacted in its current form in 1974, and constituted a substantial revision to the then-existing standard for recusal of federal judges. See Liteky v. United States, 510 U.S. 540, 546, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). While the pre-1974 law required a" }, { "docid": "16306985", "title": "", "text": "state court judge. The same day we appointed counsel to represent Clemmons in this matter against Appellees William J. Wolfe, District Attorney of the County of Dauphin, and Pennsylvania Attorney General Gerald J. Pappert. Three months later we amended the COA to add the following issue: whether the district court judge abused his discretion by deciding the merits of Appellant’s petition for writ of habeas corpus without first addressing Appellant’s request for counsel. On appeal, Clemmons contends that Judge Caldwell was required to recuse himself sua sponte in Clemmons’ 28 U.S.C. § 2254 habeas action challenging the trial and conviction over which Judge Caldwell formerly presided as a state court judge. Although Clemmons does not explicitly so state, it appears he argues that this presents a legal question over which we would have plenary review. Second, Clemmons contends that the District Court abused its discretion by failing to address the merits of Clemmons’ application for appointment of counsel before dismissing the motion as moot. II. The relevant federal statute, 28 U.S.C. § 455(a), provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has stated that the purpose of this provision is “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Clemmons claims that Judge Caldwell created the appearance of impropriety by failing to recuse himself in the habeas proceeding because he had presided over the state trial. Because Clemmons did not object to Judge Caldwell’s failure to recuse in the habeas proceeding, a “plain error standard of review applies.” United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.1983) (citations omitted). We may overlook the failure to object where the “error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citations omitted). On its face, the" }, { "docid": "4234789", "title": "", "text": "the former Director of the Appellate Defense Division, Captain Carol J. Cooper, USN, was also appointed to the NMCCA. Apparently at her own volition, she instituted a procedure whereby both appellants and the Government were given an opportunity to waive objection to her participation on cases arising during her tenure as Director, without which waiver she would recuse herself. This procedure certainly avoids the situation in which Judge Dorman finds himself, but it does not appear to be a requirement of the NMCCA, the Navy, the Marine Corps, or any statute, regulation, or ethical standard, and we express no view as to the merits of the procedure. . In so observing, we cast no aspersion of the Appellate Defense Division. Quite the contrary, the mere fact that the Government, as a matter of policy, regularly did not contest the first seven motions for enlargement of time suggests that it was aware of chronic understaffing of the Appellate Defense Division, a matter obviously out of the control of the Division. SULLIVAN, Judge (dissenting): I disagree with the majority’s abuse of discretion approach to this case. Instead, I would hold that Judge Dorman erred in failing to recuse himself. In my view, federal law required recusal in this case, and Judge Dorman had no discretion to formulate his own recusal policy in derogation of those statutory provisions. See United States v. Ampriester, 37 F.3d 466, 467 (9th Cir.1994). More particularly, his recusal was required by 28 USC § 455(b)(3) (prior government employment disqualification) and 28 USC § 455(a) (“impartiality might reasonably be questioned” disqualification). Turning first to 28 USC § 455(b)(3), I find that Congress, not Judge Dorman, has drawn the line concerning this judicial disqualification. It has stated: § 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonable be questioned. (b) He shall also disqualify himself in the following circumstances: (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the" }, { "docid": "14725769", "title": "", "text": "himself sua sponte in the second case deprived Johnson of having the same judge preside over both his trial and sentencing, and implicated the public interest in the impartial administration of justice. Under § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A judge shall also disqualify himself “[w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3). In this circuit, a § 455(a) claim of bias is not properly preserved for appeal unless a defendant seeks a writ of mandamus. United States v. Diekemper, 604 F.3d 345, 351-52 (7th Cir.2010). This rule upholds the general principle that a post hoc motion for recusal does little to remedy a § 455(a) violation, as the purpose of § 455(a) is to preserve the appearance of impartiality. Id. at 352. Although this case presents somewhat unusual procedural circumstances, the same reasoning applies. Therefore, we apply the same standard. Accord United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir.2001) (“Because a party waives his § 455(a) recusal argument by failing to petition for a writ of mandamus, it follows that he also waives it by failing altogether to raise it at the district court level”). Thus, Johnson’s § 455(a) challenge is waived. “ ‘It is less clear under our case law whether we may review a refusal to recuse under section 455(b) when the argument is raised for the first time on appeal,’ but assuming that we can, that review will be for clear error.” Diekemper, 604 F.3d at 351 (quoting United States v. Smith, 210 F.3d 760, 764 (7th Cir.2000)). As in Diekemper, Johnson did not raise the issue of recusal before the district court but now argues that the judge had a duty to recuse himself sua sponte. See id. Accordingly, we review Johnson’s § 455(b)(3) challenge under a clear error standard. Johnson cannot meet" }, { "docid": "1126502", "title": "", "text": "dictated by Munsingwear, we proceed, in the alternative, to literal compliance with that mandate. Should the appellant appeal this decision, the Federal Circuit may wish to consider the vitality of its remand decision as precedent. The appellant argues that Judge Ivers had arbitrarily and capriciously ignored prima fa-cie evidence regarding the condition of the appellant’s left eye while in the service and that his statement that “veterans have a special advantage over claimants for other types of gratuitous benefits” made while he was General Counsel of VA before the U.S. Senate Committee on Veterans’ Affairs was evidence of partiality. On November 2,1992, the appellant'also requested that, when this Court conducted a reconsideration of the re-cusal issue, we include in our consideration the entire contents of his petition for a writ of mandamus which he had filed with the Federal Circuit. Pursuant to his request, we have examined the arguments the appellant put forth in that forum, as well as the voluminous appendices he attached thereto. The statute pertaining to disqualification of judges, 28 U.S.C. § 455, provides in pertinent part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. ... (Section 455 is applicable to the Court of Veterans Appeals by operation of 38 U.S.C. § 7264(c).) The appellant basically argues that Judge Ivers should have recused himself under the provisions of" }, { "docid": "11548813", "title": "", "text": "AXA. In an Order entered July 30, 2001, the Court stated that, conditional on the filing of certain further representations to the effect that restitution would not be sought on behalf of AXA, “recusal is not required,” and further stated that the Court’s decision was “based entirely on the changed circumstances reflected in the Government’s July 17, 2001, letter.” Section 155(a). Section 455(a) of Title 28 provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Disqualification under section 455(a) requires a showing that would cause “an objective, disinterested observer fully informed of the underlying facts [to] entertain significant doubt that justice would be done absent recusal.” In re Aguinda, 241 F.3d 194, 201 (2d Cir.2001) (citation and internal quotation marks omitted) (alteration in original); see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 858-62, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); United States v. Bayless, 201 F.3d 116, 127-28 (2d Cir.2000). This section is the sole basis for the Appellant’s challenge to Judge Pauley’s participation in the pending case. No claim is made that the Judge should have recused himself pursuant to section 455(b)(4) of Title 28, which requires disqualification if a judge or certain family members have a “financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(4). Thus, the Appellant makes no claim that Judge Pauley had “a financial interest in the subject matter in controversy,” or that a victim of a criminal fraud is a “party” in the criminal case within the meaning of section 455(b). The Appellant advances several arguments as to why Judge Pauley was required to recuse himself under section 455(a). We consider each contention. Ownership of AXA shares. The Appellant’s principal contention is that Judge Pauley’s impartiality could reasonably be questioned because of his and his wife’s ownership of 400 shares of AXA Financial, one of the many insurers with a claim for restitution as a result of the" }, { "docid": "22432272", "title": "", "text": "simply: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. Notably, under § 455(a), recusal is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself whenever an objective, informed observer could reasonably question the judge’s impartiality, regardless of whether he is actually partial or biased. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Section 455(a) complements § 455(b), which addresses the problem of actual bias by mandating recusal in certain specific circumstances where partiality is presumed. See 28 U.S.C. § 455(b) (requiring recusal when, inter alia, a judge has “a personal bias or prejudice concerning a party”). Section 455 was enacted in its current form in 1974, and constituted a substantial revision to the then-existing standard for recusal of federal judges. See Liteky v. United States, 510 U.S. 540, 546, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). While the pre-1974 law required a judge to recuse himself only when it was “improper, in his opinion, for him to sit,” 28 U.S.C. § 455 (1970), thus establishing a subjective standard, § 455(a) adopts the objective standard of a reasonable observer. See Li-teky, 510 U.S. at 548, 114 S.Ct. 1147. As a result, the judge’s own subjective perception of impropriety is not necessary to invoke the statute. See id. We have stated the standard for recusal under § 455(a) as follows: [A] court of appeals must ask the following question: Would a reasonable person, knowing all the facts, conclude that the trial judge’s impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal? Diamondstone v. Macaluso, 148 F.3d 113, 120-21 (2d Cir.1998) (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992)). The standard is “designed to promote public confidence in the impartiality of the judicial process.” SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861" }, { "docid": "19853706", "title": "", "text": "untimely. Id. (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860-64, 108 S.Ct. 2194, 2203-04, 100 L.Ed.2d 855 (1988)). Although the above cases sometimes referred generally to § 455, they involved either subsection (a) or (b)(1) of § 455, and the instant ease involves § 455(b)(3). In Mixon v. United States, 620 F.2d 486, 487 (5th Cir.1980), we addressed a § 455(b)(3) claim that had not been raised in the district court. In that case, the magistrate who presided over Mixon’s 28 U.S.C. § 2255 proceedings was the same individual who, as an Assistant United States Attorney, had represented the government in earlier proceedings involving the same convictions. We found that the magistrate was disqualified and that such disqualification rendered the § 2255 proceedings a nullity. In the instant case, as set forth below, we find that recusal was not mandated, and, thus, there was no error, plain or otherwise. Mangum asserts that Judge Wingate “was a member of the prosecution’s staff at the time that [he] pled guilty” to the offense of murder that is the subject of the habeas petition now before us. Although the state concedes that Judge Wingate was an assistant district attorney in Hinds County at that time, it asserts that Judge Wingate did not participate in Mangum’s guilty plea proceedings. The state record supports that assertion, and, further, Mangum does not specifically allege that Judge Wingate (then Assistant District Attorney Wingate) was personally involved in his ease. The state, citing several cases from other circuits, argues that the judge was not required to recuse himself because he did not actually participate in the proceedings. The language of § 455(b)(3) provides that a judge shall disqualify himself “[wjhere he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding.” (emphasis added). In contrast, as explained by the Tenth Circuit, the predecessor version of § 455(b)(3) provided that “[A]ny ... judge of the United States shall disqualify himself in any case in which he ... has been of counsel.” United States v. Gipson, 835 F.2d" }, { "docid": "4234778", "title": "", "text": "action in cases until an eighth motion for enlargement of time was filed or an initial brief was filed by an appellant. As previously indicated, the “facts” of this appeal are essentially stipulated or unrebutted. See United States v. Ginn, 47 MJ 236, 241-42 n. 4 (1997). The thrust of appellant’s contention is that Appellate Government’s receipt of a copy of his record of trial while Col Dorman was still Director of the Division, without more, mandated his recusal as judge, notwithstanding that the record remained in storage and unreviewed until after his departure from the Division. Ill Title 28 USC § 455 provides, in pertinent part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy. (Emphasis added.) Title 28 USC § 455 applies to judges of the Courts of Criminal Appeals. United States v. Hamilton, 41 MJ 32, 39 (CMA 1994). Canon 3C of the Code of Judicial Conduct RCM 902(a), Manual for Courts-Martial, United States (1995 ed.), are virtually identical. See also United States v. Wright, 52 MJ 136, 140-41 (1999); United States v. Morgan, 47 MJ 27, 29 (1997). As we noted in United States v. Mitchell, 39 MJ 131, 143 (CMA 1994): The test is whether a reasonable person who knew all the facts might question these appellate military judges’ impartiality. At the same time, judges are cautioned not to leave cases “unnecessarily.” Wnght, supra at 141. Recusal decisions by inferior courts are normally reviewed with an abuse of discretion standard. Mitchell, supra at 144 n. 7. In the instant case, Judge Dorman made a specific decision as to how he would approach the issue of recusal with respect to the relationship between his service in Appellate Government and his subsequent appointment as a Judge on" }, { "docid": "4234790", "title": "", "text": "the majority’s abuse of discretion approach to this case. Instead, I would hold that Judge Dorman erred in failing to recuse himself. In my view, federal law required recusal in this case, and Judge Dorman had no discretion to formulate his own recusal policy in derogation of those statutory provisions. See United States v. Ampriester, 37 F.3d 466, 467 (9th Cir.1994). More particularly, his recusal was required by 28 USC § 455(b)(3) (prior government employment disqualification) and 28 USC § 455(a) (“impartiality might reasonably be questioned” disqualification). Turning first to 28 USC § 455(b)(3), I find that Congress, not Judge Dorman, has drawn the line concerning this judicial disqualification. It has stated: § 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonable be questioned. (b) He shall also disqualify himself in the following circumstances: (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (Emphasis added.) It is undisputed in this ease that Judge Dorman in his earlier governmental employment was the Director of the Appellate Government Division when appellant began his appeal at the Court of Criminal Appeals. See Article 70, UCMJ, 10 USC § 870; RCM 1202, Manual for Courts-Martial, United States (1995 ed.). Thus, when appellant filed his appeal, Judge Dorman was in charge of the government prosecution team that was responsible for the opposition to appellant’s appeal. It is this role (of the then Colonel Dorman), with its official responsibilities with regard to this case as the senior officer and branch chief of the prosecution team, that mandatorily disqualified him from deciding this case when he was transferred to the Court of Criminal Appeals. See United States v. Arnpriester, supra (knowledge and acts of his assistants strictly imputed to U.S. Attorney); United States v. Siders, 17 MJ 986, 987 (ACMR 1984) (head of appellate government division disqualified from doing subsequent judge" }, { "docid": "9631351", "title": "", "text": "APPLICABLE LAW The statute pertaining to the disqualification of judges, 28 U.S.C. § 455, has been made specifically applicable to judges of the Court of Veterans Appeals by operation of 38 U.S.C. § 7264(c). See Aronson, 14 F.3d at 1581. The portions of 28 U.S.C. § 455 pertinent to the appellant’s allegations of bias and prejudice are: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; The Supreme Court, in interpreting § 455(a), has made it clear that it is the appearance of partiality and not whether a judge subjectively believes himself or herself to harbor bias or prejudice which is controlling. “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988). More recently, the Court in Liteky v. United States, stated that “what matters is not the reality of bias or prejudice, but its appearance. Quite simply and quite universally, recusal [is] required whenever ‘impartiality might reasonably be questioned.’ ” 510 U.S. 540, 548, 114 S.Ct. 1147, 1154, 127 L.Ed.2d 474 (1994). The United States Court of Appeals for the Federal Circuit recently placed § 455 in a historical context. Before 1974, § 455 required “any justice or judge ... to disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or proceeding therein.” Section 455 was amended in 1974 to clarify and broaden the grounds for judicial disqualification and to conform with the recently adopted ABA Code of Judicial Conduct, Canon 3" }, { "docid": "16306986", "title": "", "text": "“[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has stated that the purpose of this provision is “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Clemmons claims that Judge Caldwell created the appearance of impropriety by failing to recuse himself in the habeas proceeding because he had presided over the state trial. Because Clemmons did not object to Judge Caldwell’s failure to recuse in the habeas proceeding, a “plain error standard of review applies.” United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.1983) (citations omitted). We may overlook the failure to object where the “error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citations omitted). On its face, the error complained of in this case—a federal judge sitting in review of the propriety of the state proceedings conducted by that judge—seriously affects the fairness and public reputation of the judicial proceedings, and thus we proceed to consider whether the habeas judge should have sua sponte recused notwithstanding Clem-mons’ failure to raise the issue in the habeas proceeding. We have previously stated that the “public’s confidence in the judiciary ... may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.” In re Kensington Int’l Ltd., 353 F.3d 211, 220 (3d Cir.2003) (emphasis in original) (internal quotation marks and citation omitted). When Congress amended Section 455(a) in 1974, it replaced the statute’s formerly subjective standard with an objective one, stating: Subsection (a) of the amended section 455 contains the general, or catchall, provision that a judge shall disqualify himself in any proceeding in which “his impartiality might reasonably be questioned.” This sets up an objective standard, rather than the subjective standard set forth in the existing statute" }, { "docid": "16014464", "title": "", "text": "this effect in the Code or the Manual, any relationship of a judge of the Court of Military Review which casts suspicion upon his fairness or impartiality provides a basis to seek his disqualification. United States v. Crider, supra at 196, 44 C.M.R. at 250; United States v. Hurt, supra at 753, 27 C.M.R. at 21. The Federal statute which concerns disqualification of judges (28 U.S.C. § 455) provides some guidance as to the circumstances which should preclude an appellate judge from participation in review of a case. It includes these provisions: § 455. Disqualification of justice, judge, magistrate, or referee in bankruptcy (a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; If 28 U.S.C. § 455 were applicable to courts of military review, it would not have compelled disqualification of Commander Burgess. With respect to “personal bias or prejudice,” § 455(b)(1), we conclude that Burgess’ service as trial counsel six years before, in a trial for two unauthorized absences to which Kincheloe pleaded guilty, gives no reason to infer the existence of a prohibited state of mind almost six years later, when Commander Burgess reviewed the record of trial as an appellate judge. In various cases a trial judge has been allowed to sit in a criminal case even though he previously prosecuted the defendant for other crimes. See, e.g., Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir. 1980), cert. denied, 449 U.S. 853, 101 S.Ct. 146, 66 L.Ed.2d 66 (1980); Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir. 1979), cert. denied, 446 U.S. 943, 100 S.Ct. 2169, 64 L.Ed.2d 798 (1980); Murphy v." }, { "docid": "1126503", "title": "", "text": "455, provides in pertinent part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. ... (Section 455 is applicable to the Court of Veterans Appeals by operation of 38 U.S.C. § 7264(c).) The appellant basically argues that Judge Ivers should have recused himself under the provisions of 28 U.S.C. § 455(a) because the fact that Judge Ivers was once VA General Counsel alone suggests that his impartiality may reasonably be questioned. Appellant’s brief (Br.) for Federal Circuit at 15. The appellant also asserts that Judge Ivers has an “interest” in not recusing himself in this case because it might lead to disqualification in all cases and that that “interest” required him to recuse himself under section 455(b)(5)(iii). Id. We note first of all that the issues of then-General Counsel Ivers’ opposition to judicial review of VA decisions as a matter of policy, his recusal in appropriate cases, and whether or not opinions issued by then-General Counsel Ivers were his own or reflections of sound legal precedent were raised and fully explored during Judge Ivers’ confirmation hearings. See Nomination of Donald L. Ivers: Hearing Before the Comm, on Veterans’ Affairs, United States Senate, 101st Cong., 2nd Sess. 21, 24, 26, 30, 32, 94-99 (1990) [hereinafter Hearings] (statements of Donald L. Ivers and letter from Senator Cranston, Chairman, to Donald Ivers and response thereto)." }, { "docid": "22432207", "title": "", "text": "Judge Brett erred in failing to disqualify himself in light of the allegations at issue in these eases, under the particular circumstances presented, we decline to set aside any findings or conclusions of the three-judge panel on that basis. Section 455 provides in pertinent part as follows: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party[J 28 U.S.C. § 455 (emphasis added). The general purpose of § 455(a) is “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2202 n. 7, 100 L.Ed.2d 855 (1988). Thus, the section is designed to eliminate “even the appearance of impropriety whenever possible.” Id. at 865, 108 S.Ct. at 2205. Pursuant to § 455(a), “a judge has a continuing duty to recuse before, during, or in some circumstances, after a proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge’s impartiality.” United States v. Cooley, 1 F.3d 985, 992 (10th Cir.1993). The standard under § 455(a) is an objective one, and requires recusal whenever “a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Id. at 993 (farther citation omitted). Here, petitioners’ habeas and civil rights claims require the district court not only to review the opinions of the Oklahoma Court of Criminal Appeals, but also to decide whether that court participated in, or at least authorized, alleged violations of petitioners’ constitutional rights. Therefore, under § 455(a) Judge Brett should have recused himself. “[Section] 455(b) is stricter than § 455(a) and is concerned with situations that may involve actual bias rather than § 455(a)’s concern with the" } ]

[ { "docid": "23383073", "title": "", "text": "guilty pleas attests to that. We put off until another day consideration of the third alternative suggested above, that of simply “outlawing” all statements following uncounseled waivers by indicted defendants. Such a course would be the most drastic of the three, and might run counter to the policy that a defendant constitutionally can insist upon proceeding without counsel even though he has been fully advised of the folly of doing so. See Faretta v. California, supra, 422 U.S. at 835-36, 95 S.Ct. at 2541. Accordingly, in the exercise of our supervisory power, we hold that with respect to statements resulting from interrogation or its functional equivalent, see Rhode Island v. Innis, - U.S. -,---, 100 S.Ct. 1682, 1687-1689, 64 L.Ed.2d 297 (1980), as distinguished from volunteered statements, an indicted defendant’s waiver of the right to counsel after the date of this opinion is ineffective unless a judicial officer has first given him warnings and advice sufficient to assure comprehension of that right. Ill Since we are remanding for a new trial, we think it advisable to discuss briefly appellant’s final claim, which is that the trial judge’s charge to the jury was erroneous. At the government’s request, the judge instructed the jury on “conscious avoidance” of knowledge. Appellant argues to us both that there was no evidentiary basis for giving such a charge and that the charge as given was so deficient as to deprive him of a fair trial. We disagree on both counts. As our discussion in Part I suggests, the government produced sufficient evidence here to justify a reasonable juror in concluding that if appellant was not aware of the essential nature of the conspiracy, it was only because he was consciously shutting his eyes to such knowledge. Since the circumstances here were such that they should have apprised appellant of “the unlawful nature of [his] conduct,” we hold that it was proper to give a charge on conscious avoidance. See United States v. Joyce, 542 F.2d 158, 161 (2d Cir. 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 548 (1977). Likewise, we believe" } ]

[ { "docid": "1439476", "title": "", "text": "utilized the concept of “supervisory control” within the context of discovery and disclosure abuses, see, e.g., United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the source and scope of this power is as amorphous as the concept of a federal common law. The Supreme Court’s most recent decisions refer simply to the supervisory authority of the federal courts in question. See, e.g., United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); id. at 513 n. 1, 103 S.Ct. at 1982 n. 1 (Stevens, J., concurring); United States v. Payner, 447 U.S. 727, 734-36 & n. 7, 100 S.Ct. 2439, 2445-47 & n. 7, 65 L.Ed.2d 468 (1980). Various federal courts have employed their supervisory authority to control the conduct of the prosecutor in order to enforce ethical and professional standards and to devise sanctions for misconduct by government investigators. See, e.g., United States v. Banks, 383 F.Supp. 389 (D.S.D.1974) (criminal charges dismissed with prejudice because of several incidents of prosecutorial misconduct and bad faith during discovery and trial). Recent decisions, however, reflect a growing recognition that the courts’ use of supervisory power to control prosecutorial and other executive activities must be limited by separation of powers principles. See United States v. Lau Tung Lam, 714 F.2d 209, 210 (2d Cir.), cert. denied, 464 U.S. 942, 104 S.Ct. 359, 78 L.Ed.2d 322 (1983) (“the federal judiciary’s supervisory powers] over prosecutorial activities that take place outside the courthouse is extremely limited, if it exists at all”); United States v. Kelly, 707 F.2d 1460, 1475-76 (D.C.Cir.), cert. denied, 464 U.S. 908, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983); United States v. Gervasi, 562 F.Supp. 632, 645 (N.D.Ill.1983). The Fifth Circuit has held that supervisory authority may not be used to dismiss an indictment for prosecutorial misconduct when the defendant was not prejudiced by the government’s conduct, or when any prejudice to the defendant may" }, { "docid": "22241400", "title": "", "text": "on Weinberg’s credibility if he had been given Weinberg’s testimony at the “due process” hearing in Philadelphia before Judge Fullam, in which Weinberg falsely denied having been cautioned, after the August 9 session, not to coach potential defendants. The falsity of this denial was not relevant to any testimony Weinberg gave at Thompson’s trial. Thompson made no claim that he had been “coached” into making false promises to help the sheik. Moreover, like all the defendants, he had abundant grounds on which to attack Weinberg’s credibility. None of these claims, nor any of the other alleged Brady violations, which we do not detail, remotely provides a basis for any relief. ‡ # sf: sfc * Having considered all of appellants’ claims that the investigation violated the standards of the Due Process Clause, we conclude that the conduct of the Abscam operation did not deny any appellant a constitutionally protected right. Appellants contend, nevertheless, that we should assess the conduct of the government agents under more exacting standards than those of the Due Process Clause and dismiss the indictments in the exercise of our supervisory power over the administration of criminal justice. Whatever the scope of that authority in the aftermath of United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), it does not permit courts to fashion their own “sub-constitutional” limitations on the conduct of law enforcement agents. Prior to Payner, the supervisory power was used to fashion and enforce rules for judicial proceedings in order to safeguard important constitutional rights. See, e.g., United States v. Mohabir, 624 F.2d 1140, 1151-53 (2d Cir. 1980) (right to counsel); United States v. Hinton, 543 F.2d 1002, 1010 (2d Cir.) (self-incrimination), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). And, on infrequent occasions, the power was used to discipline prosecutorial irregularities, particularly in front of grand juries. See United States v. Jacobs, 531 F.2d 87 (2d Cir.), vacated mem., 429 U.S. 909, 97 S.Ct. 299, 50 L.Ed.2d 277, reinstated, 547 F.2d 772 (2d Cir. 1977), cert. dismissed, 436 U.S. 81, 98 S.Ct. 1873, 56" }, { "docid": "22167948", "title": "", "text": "added). Under both Fourth Amendment principles, see United States v. Payner, 447 U.S. 727, 731 (1980), and Title III law, see United States v. Fury, 554 F.2d 522, 525 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978), a defendant may not obtain the exclusion of evidence on the ground that someone else’s rights were violated. In other words, a defendant may assert only his own rights. Consequently, a defendant may not successfully challenge the admissibility of evidence on the basis that the evidence is tainted (or “the fruit of”) some past infringement of another’s rights. See United States v. Williams, 580 F.2d 578, 583 n. 21 (D.C.Cir.) (Title III case), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978); United States v. Wright, 524 F.2d 1100, 1102 (2d Cir.1975) (same); see also United States v. Chase, 692 F.2d 69, 70 (9th Cir.1982) (Fourth Amendment standing law); United States v. Hansen, 652 F.2d 1374, 1386-87 (10th Cir.1981) (same). In this case, the defendants would not have a constitutional cause of action against Tickel for his two searches of Amalgamated Insurance Agency, and we will not, for purposes of the exclusionary rule, permit an indirect attack where no direct challenge is possible. Furthermore, United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), precludes the invocation of our supervisory powers. In Payner the Court held that a federal court may not “use its supervisory power to suppress evidence tainted by gross illegalities that did not infringe the defendant’s constitutional rights.” Id. at 733, 100 S.Ct. at 2445. We will not permit an end run around Payner by holding, as the defendants request, that the government’s failure to inform the Title III authorizing court of Tickel’s searches was a material omission, see generally supra p. 604, requiring suppression. Finally, we disagree with the defendants that, assuming Tickel’s allegations are true, the district court was required to reverse its earlier finding of no Franks violation, see supra pp. 602-604. The Tiekel affidavit is simply not that probative of whether the government" }, { "docid": "17309932", "title": "", "text": "of overseeing the orderly administration of criminal justice and supervising the practice of attorneys before the federal bar including government attorneys and investigative officers. See, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Smith v. Katzenbach, 351 F.2d 810 (D.C.Cir.1965). The exercise of supervisory power is not limited to enforcing the minimal standards of conduct and procedure derived from the Constitution but extends to establishing and maintaining those higher standards necessary and helpful in promoting fair adjudications and securing the integrity of the federal court system. See, e.g, McNabb v. United States, supra, 318 U.S. at 340, 63 S.Ct. at 613; United States v. Payner, 447 U.S. 727, 744-51, 100 S.Ct. 2439, 2450-52, 65 L.Ed.2d 468 (1980) (dissent) (collecting cases); United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (dissent), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971). Thus, the court’s inherent power may be applied to curb procedures with potential for abuse. United States v. Tantalo, 680 F.2d 903, 909 (2d Cir. 1982); United States v. Hinton, 543 F.2d 1002, 1010 (2d Cir. 1976), cert. denied sub nom. Carter v. United States, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976), cert. denied sub nom. Bates v. United States, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 783 (1977). Cf. United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir. 1982). The supervisory power may be invoked “in any manner necessary to remedy abuses of a district court’s process.” United States v. Toscanino, 500 F.2d 267, 276 (2d Cir. 1974). Deception such as that practiced here on both the defendant and his attorney can be said to have constituted an abuse of the process of this court when the court becomes implicated — i.e., when fruits of the deception are sought to be used in court. Introduction at trial of evidence obtained in this way would make the court an instrument of the ethical violation. To countenance a procedure such as" }, { "docid": "4686965", "title": "", "text": "States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983). Supervisory power can be exercised to impose an “ad hoc sanction” to enforce the appropriate performance of the government in presenting evidence to the grand jury. United States v. Jacobs, 547 F.2d 772, 778 (2d Cir.1976), cert. granted, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977), cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978); United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972). The exercise of the court’s supervisory power can extend beyond the minimum requirements set by the Constitution to encourage fair and uniform procedures in the prosecution of criminal actions. United States v. Jacobs, 547 F.2d 772, 776 (2d Cir.1976). The Second Circuit has admonished district courts to oversee the conduct of prosecutors particularly carefully with respect to grand juries. Incorporated into the Bill of Rights as a bulkward against unfounded government prosecution, the grand jury has lost some of its potency as a shield. “[Pjrosecutors, by virtue of their position, have gained such influence over grand juries that these bodies’ historic independence has been eroded.” Hogan, 712 F.2d at 759. This “gain in prosecutors' influence over grand juries is all the more reason to insist that ... limitations [on prosecutorial presentations] be observed strictly.” Id Thus in choosing when to exercise its supervisory power, a court must be mindful of echoes of Fifth Amendment rights — both of the right to due process and the right to an independent grand jury- A court has a variety of supervisory tools at its disposal. It can admonish a prosecutor — although it has often been noted how fruitless this is. See, e.g., Estepa, 471 F.2d at 1137 (“We cannot ... content ourselves with yet another admonition.”). Under some circumstances, it may be appropriate to hold an Assistant in contempt of court. See Fed.R.Crim.P. 42(a). Finally, under the proper circumstances, it is appropriate to dismiss the indictment, even (as was the case in Hogan) if a petit jury has already returned a conviction on the charges in the indictment. 712 F.2d at 757; see" }, { "docid": "13058866", "title": "", "text": "States v. Janis, 428 U.S. 433, 455-56 n. 31, 96 S.Ct. 3021, 3032-33 n. 31, 49 L.Ed.2d 1046 (1976), these circuits would derive an exclusionary rule for foreign searches from the supervisory power of the federal courts over the administration of criminal justice. McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943) (Frankfurter, J.). The initial difficulty with this approach — and I believe it to be a fatal one — is that our supervisory powers have been substantially curtailed by the Supreme Court’s recent decision in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Under that decision, we clearly lack supervisory power to create any exclusionary rule that expands the rule the Supreme Court has created under the Fourth Amendment. That forecloses any exclusion of evidence seized abroad by foreign police. In Payner, special agents of the Internal Revenue Service arranged for a private investigator to conduct an unconstitutional search of the belongings of a bank vice president in the hope of obtaining incriminating evidence against third parties. As a result of this search, evidence was obtained that ultimately incriminated a third party, Jack Payner. The district court found that the IRS was deliberately conducting unconstitutional searches in order to find evidence against third-party suspects. The IRS was informing its agents that these suspects would lack standing under the Fourth Amendment to challenge the legality of the original unconstitutional searches. Because of the government’s willful disobedience of the law, the district court employed its supervisory power to exclude the tainted evidence incriminating Payner even though the Fourth Amendment did not apply. The Sixth Circuit affirmed, 590 F.2d 206 (1979) (per curiam), and the Supreme Court reversed. Justice Powell, writing for the Court, held that the supervisory power could not be used to exclude evidence in a criminal prosecution where the defendant would not have had standing to seek exclusion under the Fourth Amendment. To allow exclusion under the supervisory power, he said, would be to erode the Supreme Court’s Fourth Amendment case law with its carefully" }, { "docid": "1286634", "title": "", "text": "this misconduct and we rejected deterrence of official misconduct as a justification for dismissal as there was no finding of widespread or continuous official misconduct. . In Brown, the Government appealed from the trial court’s judgment dismissing an indictment in the exercise of its supervisory powers over the administration of justice on the ground that “ . . the government’s behavior in the case threatened to compromise the integrity of the criminal trial and the administration of justice.” 602 F.2d at 1076. The Government’s misconduct consisted of the failure to supervise a paid informant who was found by the trial court to be “a wholly amoral individual.” Id. Reversing and ordering the reinstatement of the indictment, we held that in view of the failure to show widespread or continuous governmental misconduct, dismissal of the indictment was not warranted. . In Fields, the Government appealed from the trial court’s dismissal of substantial portions of a securities fraud indictment because of alleged misconduct by S.E.C. employees in attempting to settle a related civil action. The misconduct consisted of the employees’ concealment of their reference of the case to the United States Attorney while leading defense counsel to believe the opposite was true. For the reasons quoted in the text, we reversed and remanded with directions to reinstate the unexpurgated indictment. . In Fields, this court cited in footnotes 22 and 23, several cases in which dismissal of an indictment was proper. As a comparison of those cases with the instant case may further elucidate our action in this case, we quote those footnotes herein: 22 United States v. Jacobs, 531 F.2d 87, 90 (2 Cir.) (dismissal of perjury count of indictment affirmed in interest of prosecutorial fairness in the same district regarding warning grand jury witness that she was a target of investigation), vacated and remanded, 429 U.S. 909, [97 S.Ct. 299, 50 L.Ed.2d 277], aff’d on remand, 547 F.2d 772 (2 Cir. 1976), cert. dismissed, 436 U.S. 31, [98 S.Ct. 1873, 56 L.Ed.2d 53] (1978); United States v. Minnesota Mining & Mfg. Co., 551 F.2d 1106, 1112 (8 Cir. 1977) (dismissal" }, { "docid": "22806859", "title": "", "text": "get his claim checks; Finiello testified that it was he, not Amato, who had requested the claim checks. . But cf. United States v. Freeman, supra, 514 F.2d at 1321 n.45 (“In this area [reversal for improper prosecution summation], unlike the realm of police misconduct addressed by the fourth amendment exclusionary rule, the burden of reversal falls directly on the one responsible for the misconduct.”). . We note that appellate courts have generally been reluctant to name the individual prosecutors whose comments have been found improper. Among the many reported decisions of this Court in the last decade, apparently only two identify the prosecutor. One does so obliquely, by quoting the trial judge’s statement to him. United States v. Drummond, supra, 481 F.2d at 63. The other notes that the prosecuting attorney argued the appeal. United States v. Stahl, 616 F.2d 30, 32 (2d Cir. 1980). We refrain from naming the prosecutor in this case because his improper remarks, though ill-advised, were not instances of deliberate misconduct. . See United States v. Payner, 447 U.S. 727, 735 n.7, 100 S.Ct. 2439, 2446, 65 L.Ed.2d 468 (1980) (supervisory power “permits federal courts to supervise the administration of criminal justice among the parties before the bar”); United States v. Jacobs, 547 F.2d 772, 775-76 (2d Cir.), cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1976); United States v. Toscanino, 500 F.2d 267, 276 (2d Cir. 1974). . A separate, potential basis for appellate discipline of attorneys is the courts’ duty to enforce ethical standards. Improper statements by federal prosecutors constitute unethical conduct, regardless of whether they justify reversal in a particular case. Inflammatory remarks or personal attestations as to guilt or credibility violate the Code of Professional Responsibility. See, e. g., United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976); Olenin v. Curtin & Johnson, Inc., 424 F.2d 769, 769-70 (D.C.Cir. 1970); United States v. Munford, 431 F.Supp. 278, 289 (E.D.Pa.1977); ABA Code of Professional Responsibility, Disciplinary Rule 7-106(C) & Ethical Consideration 7-24. We leave unexamined at this time the limits on this power implicit in our" }, { "docid": "23217658", "title": "", "text": "he has been denied due process of law, and (2) that we should invoke our supervisory powers and dismiss the indictment. Dismissals based on constitutional grounds or our supervisory powers are premised on distinct though closely related theories. See Chanen, 549 F.2d at 1309 n. 2; Sears, Roebuck, 719 F.2d 1386, 1394-95 (Norris, J., dissenting). The constitutional ground is hinged to the due process clause of the fifth and fourteenth amendments, and the grand jury clause of the fifth amendment. Id. at 1391, n. 7. Samango, 607 F.2d at 881 (citation omitted). The “constitutional analysis focuses on preserving fairness for the individual defendant and remedying any harm that has been done to his basic rights.” Sears, Roebuck, 719 F.2d at 1394 (Norris, J., dissenting). This fairness requires that prosecutorial discretion not be “arbitrary and capricious.” Samango, 607 F.2d at 881. The supervisory powers theory, on the other hand, is premised on the inherent ability of the federal courts to “formulate procedural rules not specifically required by the Constitution or the Congress.” United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96, 104 (1983). It permits us “to supervise ‘the administration of criminal justice’ among the parties before the bar.” United States v. Payner, 447 U.S. 727, 735 n. 7, 100 S.Ct. 2439, 2446 n. 7, 65 L.Ed.2d 468 (1980), reh. denied, 448 U.S. 911, 101 S.Ct. 25, 65 L.Ed.2d 1172 (1980) (quoting McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943)). In deciding whether to invoke our supervisory powers to dismiss an indictment, we consider the egregiousness of the prosecutor’s misconduct and the availability of less drastic sanctions. See Sears, Roebuck, 719 F.2d at 1395 (Norris, J., dissenting). In some cases a pattern of misconduct by a particu lar prosecutor or his office may convince us to invoke this power. See id. There is primarily a twofold purpose justifying exercise of our supervisory power: deterring illegality and protecting judicial integrity. Payner, 447 U.S. at 735, n. 8, 100 S.Ct. at 2446, n. 8; cf. Hasting, 461 U.S. at" }, { "docid": "6092198", "title": "", "text": "414 U.S. at 348, 94 S.Ct. at 620 (same); see also United States v. Payner, 447 U.S. 727, 733, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980) (Payner) (rejecting proposition “that a federal court should use its supervisory power to suppress evidence tainted by gross illegalities that did not infringe the defendant’s constitutional rights”). In United States v. Gatto, 763 F.2d 1040 (9th Cir.1985) (Gatto), we recognized that “a court may not exercise any supervisory power absent ‘a clear basis in fact and law for doing so.’ ” Id. at 1046, quoting United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). That we might disapprove of the manner in which government agents conduct their searches does not, in itself, beckon our intervention. See Gatto, 763 F.2d at 1046. While I recognize that there are statements in a number of opinions suggesting that the exclusionary rule exists not only to vindicate a defendant’s constitutional rights, but also to protect the integrity of the court, see, e.g., Payner, 447 U.S. at 735-36 n. 8, 100 S.Ct. at 2446-47 n. 8; Mapp v. Ohio, 367 U.S. 643, 660, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 222-23, 80 S.Ct. 1437, 1446-47, 4 L.Ed.2d 1669 (1960) (Elkins), our cases have cautioned that \"[j]udicial integrity is rarely threatened significantly when executive action does not violate, the Constitution, a federal statute, or a procedural rule.” Gatto, 763 F.2d at 1046. Indeed, the Supreme Court has clarified that “[tjhe primary meaning of ‘judicial integrity’ in the context of evidentiary rules is that the courts must not commit or encourage violations of the Constitution.” Janis, 428 U.S. at 458-59 n. 35, 96 S.Ct. at 3034 n. 35; see also Elkins, 364 U.S. at 223, 80 S.Ct. at 1447 (federal courts should not be accomplices in willful violations of the Constitution). Hence, “[w]hile courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion" }, { "docid": "13058865", "title": "", "text": "concurring: While I concur in the judgment of the court and in much of Judge Greene’s excellent opinion, I write separately because it seems necessary to meet more directly appellant’s arguments concerning the exclusionary rule. Appellant contends that there should be an exclusionary rule in cases where foreign law enforcement authorities secure evidence by means which “shock the judicial conscience.” Opening Brief for Appellant at 23-28. He would have us derive this rule not from the Fourth Amendment but from our supervisory power over criminal proceedings. Yet, neither this court nor the Supreme Court has ever before required such a rule, and I can think of no useful purpose the proposed rule would serve. Indeed, I do not believe that we have the authority to refuse to consider evidence of this kind. I. Appellant relies upon cases from other circuits that adopt the rule he urges upon us. Though it is clear that the Fourth Amendment prohibition of “unreasonable searches and seizures” has no application to illegal foreign searches conducted exclusively by foreign officials, United States v. Janis, 428 U.S. 433, 455-56 n. 31, 96 S.Ct. 3021, 3032-33 n. 31, 49 L.Ed.2d 1046 (1976), these circuits would derive an exclusionary rule for foreign searches from the supervisory power of the federal courts over the administration of criminal justice. McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943) (Frankfurter, J.). The initial difficulty with this approach — and I believe it to be a fatal one — is that our supervisory powers have been substantially curtailed by the Supreme Court’s recent decision in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Under that decision, we clearly lack supervisory power to create any exclusionary rule that expands the rule the Supreme Court has created under the Fourth Amendment. That forecloses any exclusion of evidence seized abroad by foreign police. In Payner, special agents of the Internal Revenue Service arranged for a private investigator to conduct an unconstitutional search of the belongings of a bank vice president in the hope" }, { "docid": "7047540", "title": "", "text": "fraud on a small scale no doubt is very widespread in this country. Many professional or business people may not regard it a serious infraction of society’s rules to assist customers or patients in the small scale cheating of insurance companies. Yet, like the Second Circuit in Myers, which said it could not accept an “induce ment” argument that a proferred bribe was so large a congressman could not be expected to resist, 692 F.2d at 837-38, we cannot accept the notion that insurance cheating is so commonplace that it is improper for the government to try to catch and convict citizens who engage in it. We have held that the government need not have a reasonable suspicion of wrongdoing in order to conduct an undercover investigation of a particular person. United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir.1983). See also United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983). Cf. United States v. Swets, 563 F.2d 989, 991 (10th Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access" }, { "docid": "18354885", "title": "", "text": "the indictment, disqualification of government prosecutors and investigators, and suppression of evidence. Each sanction will now be treated separately. A. Dismissal The issue of dismissal of the indictment is not an easy one. Federal courts have a general supervisory power with respect to the administration of justice in federal judicial proceedings. See United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983); United States v. Payner, 447 U.S. 727, 734-36, 735 n. 8, 100 S.Ct. 2439, 2445, 2446 n. 8, 65 L.Ed.2d 468 reh’g denied, 448 U.S. 911, 101 S.Ct. 25, 65 L.Ed.2d 1172 (1980); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 reh’g denied, 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727 (1943); see generally Beale, Reconsidering Supervisory Power in Criminal Cases; Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum.L.Rev. 1433 (1984). The use of the supervisory power supports three institutional goals: deterring illegal conduct by government officials, protecting and preserving the integrity of the judicial process, and implementing a remedy for violation of recognized rights. See United States v. Hasting, 461 U.S. at 505, 103 S.Ct. at 1978; United States v. Payner, 447 U.S. at 735 n. 8, 100 S.Ct. at 2446 n. 8; Note, The Exercise of Supervisory Powers to Dismiss a Grand Jury Indictment — A Basis for Curbing Prosecutorial Misconduct, 45 Ohio St.L.J. 1077, 1084 (1984). Within limits, federal courts may formulate procedural rules not specifically required by the Constitution or the Congress. United States v. Hasting, 461 U.S. at 505, 103 S.Ct. at 1978. Courts have dismissed criminal prosecutions because of serious government abuse in the investigation leading to the indictment. See United States v. Kilpatrick, 594 F.Supp. 1324, 1352-53 (D.Col.1984); United States v. Lawson, 502 F.Supp. 158, 170 (D.Md.1980); United States v. Dahlstrum, 493 F.Supp. 966, 974-75 (C.D.Cal.1980), appeal dismissed, 655 F.2d 971 (9th Cir.1981), cert. denied, 455 U.S. 928, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982). Moreover, courts have dismissed indictments because of serious government misconduct following the indictment. See United States v. Pollock, 417" }, { "docid": "4686964", "title": "", "text": "at the hearing that Vetere had been convicted only of a Class B misdemeanor in connection with the incident, which had carried but a $500 fine. Finally, the charges with respect to assault, burglary and criminal mischief, which Agent Sager reported to the grand jury, all related to a single family incident, to which Vetere was permitted to plead guilty to a charge of disorderly conduct. Also at the hearing, Agent Sager testified that he had not prepared for his grand jury appearance before testifying, not even by reviewing his notes. IMPROPER PROCEEDINGS BEFORE THE GRAND JURY AS GROUNDS FOR DISMISSING THE INDICTMENT The issue in this case is whether the court should use its general supervisory authority to dismiss a grand jury indictment even after a petit jury has found the defendant guilty beyond a reasonable doubt of the charges brought in the indictment. “The law of this Circuit is that dismissal of an indictment is justified ... pursuant to our supervisory power, to prevent prosecutorial impairment of the grand jury’s independent role.” United States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983). Supervisory power can be exercised to impose an “ad hoc sanction” to enforce the appropriate performance of the government in presenting evidence to the grand jury. United States v. Jacobs, 547 F.2d 772, 778 (2d Cir.1976), cert. granted, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977), cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978); United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972). The exercise of the court’s supervisory power can extend beyond the minimum requirements set by the Constitution to encourage fair and uniform procedures in the prosecution of criminal actions. United States v. Jacobs, 547 F.2d 772, 776 (2d Cir.1976). The Second Circuit has admonished district courts to oversee the conduct of prosecutors particularly carefully with respect to grand juries. Incorporated into the Bill of Rights as a bulkward against unfounded government prosecution, the grand jury has lost some of its potency as a shield. “[Pjrosecutors, by virtue of their position, have gained such influence over grand" }, { "docid": "148412", "title": "", "text": "does not provide a shield against perjury. United States v. Wong, 431 U.S. 174, 178-80, 97 S.Ct. 1823, 1825-27, 52 L.Ed.2d 231 (1977). “[T]he failure of the witness to understand the privilege against self-incrimination will not require the subsequent suppression of the witness’s concededly false statements.” Babb, 807 F.2d at 276-77. In Babb we noted this Circuit’s longstanding policy that “ ‘[o]ur supervisory powers are to be used sparingly. We would be reluctant to exercise them to overturn a conviction that was not the product of manifestly improper conduct by federal officials.’” Id. at 279 (emphasis supplied, citations omitted). Since Babb the Supreme Court has articulated clear limits on the exercise of judicial supervisory powers as a means for imposing preferred policies where there is no constitutional imperative. In Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), the Supreme Court placed in question whether supervisory authority over grand jury proceedings of the type employed in Jacobs and threatened in Crocker could be exercised without conducting a harmless error analysis. The Court in Bank of Nova Scotia held “that a federal court may not invoke supervisory power to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal Procedure 52(a) [which] provides that ‘[a]ny error, defect irregularity or variance which does not affect substantial rights shall be disregarded.’ ” Id. 108 S.Ct. at 2374. Cf. United States v. Hasting, 461 U.S. 499, 506-07, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983) (supervisory powers not to be used to vacate conviction when prosecutor’s misconduct in closing argument, though reprehensible, was harmless); United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 2446, 65 L.Ed.2d 468 (1980) (supervisory powers do not authorize suppression of otherwise admissible evidence on grounds that it was seized unlawfully from a third party not before the court); United States v. Hastings, 847 F.2d 920, 927-28 (1st Cir.), cert. denied, — U.S. —, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988) (dismissal with prejudice under Speedy Trial Act for prosecutorial discovery violation not warranted in absence of causal nexus" }, { "docid": "23441472", "title": "", "text": "arguments. We do so again. In this circuit, the rule regarding admissibility of evidence in a federal prosecution is clear and simple. Evidence obtained in violation of neither the Constitution nor federal law is admissible in federal court proceedings without regard to state law. See United States v. Adams, 694 F.2d 200, 201-02 (9th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983) (citing United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Keen, 508 F.2d 986, 989 (9th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975)). The tape recordings in the present case were not obtained in violation of the fourth amendment. See United States v. White, 401 U.S. 745, 751-53, 91 S.Ct. 1122, 1125-27, 28 L.Ed.2d 453 (1971). The fourth amendment does not afford protection to wrongdoers’ misplaced confidences. Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966). Nor were the tape recordings obtained in violation of federal law. Under 18 U.S.C. § 2511(2)(c), the tape recordings were lawful and, thus, were admissible under federal law. 18 U.S.C. § 2517(3). We also reject the attempt by appellants to bypass this clear rule by invoking the supervisory power of the district court. The supervisory power is to be applied with caution when the result of its application would be to exclude probative evidence. See United States v. Payner, 447 U.S. 727, 734-35, 100 S.Ct. 2439, 2445-46, 65 L.Ed.2d 468 (1980). We decline to apply it here, where there has been no outrageous conduct by the agent and no violation of any appellants’ federal rights. B. 18 U.S. C. § 3109 Appellants argue that the IRS agents violated the “knock and notice” requirement of 18 U.S.C. § 3109, by failing to give notice of their authority and purpose prior to arresting the appellants in Indec’s office. Appellants contend that “all evidence obtained” from their arrest and subsequent search of Indec’s offices must be suppressed. The government" }, { "docid": "7047541", "title": "", "text": "(1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access to the briefcase a government agent introduced the owner of the briefcase, Michael Wolstencroft, to Sybol Kennedy, a female private investigator who worked for the agent. Wolstencroft and Kennedy spent time together in Kennedy’s apartment, where Wolstencroft left his locked briefcase while the two went out to eat at a restaurant. While one government agent acted as a “lookout” at the restaurant, other agents entered the apartment with a key furnished by Kennedy, took the briefcase to a locksmith who made a key for it, opened the briefcase and photographed documents in it that led to evidence used to convict Payner. Payner, of course, did not have standing to object to the search. The district court found that the United States “knowingly and willfully participated” in the illegal search. Nonetheless, the Supreme Court refused to affirm the use of the courts’ supervisory power to suppress the evidence. It agreed with a government argument that even though the evidence was tainted with gross illegalities, “such an extension of the supervisory power would enable federal courts to" }, { "docid": "355886", "title": "", "text": "truth-finding process is not subverted by the systematic admission of inherently untrustworthy evidence is surely the \"proper object of that power.” The repeated objections raised by Byers’ counsel to the admission of Kunev’s statements, challenging their untrustworthy and prejudicial nature, were surely adequate to preserve this issue on appeal. . United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). . Hill, The Bill of Rights and the Supervisory Authority, 61 Colum.L.Rev. 181, 194 (1969). The plurality’s insistence that \"no conceivable permissible purpose [for use of supervisory powers] exists in this case (where no unlawful activity has occurred) except self-deterrence,” pl. op. at 1123, is contradicted by an opinion upon which the plurality relies: ”[W]e agree that the supervisory power serves the ‘twofold’ purpose of deterring illegality and protecting judicial integrity.” United States v. Payner, 447 U.S. 727, 736 n. 8, 100 S.Ct. 2439, 2447 n. 8, 65 L.Ed.2d 468 (1980). By ensuring proof of confession, voluntariness, and accuracy, we protect the integrity of the judicial process. . See supra note 13. . See, e.g., United States v. Greene, 497 F.2d 1068, 1079-80 (7th Cir.1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Bohle, 445 F.2d 54, 67 (7th Cir.1971); United States v. Driscoll, 399 F.2d 135, 138 (2d Cir.1968); United States v. Albright, 388 F.2d 719, 726 (4th Cir.1968); cf. Thornton v. Corcoran, 407 F.2d 695, 698-703 (D.C.Cir.1969). . 407 F.2d 695, 702 (D.C.Cir.1969). . See United States v. Morgan, 482 F.2d 786, 793 (D.C.Cir.1973); Thornton v. Corcoran, 407 F.2d 695, 702 (D.C.Cir.1969). . The plurality incorrectly asserts that the supervisory power is here employed to command more than what the Fifth and Sixth Amendments require. PI. op. at 1123. In fact, the scope of that supervisory power is precisely coextensive with what, in my view, the Constitution commands. . In the opinions cited by the plurality, the concern was over the exclusion of accurate evidence. See United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 2446, 65 L.Ed.2d 468 (1980); Lopez v. United" }, { "docid": "23574793", "title": "", "text": "e.g., United States v. Jacobs, 531 F.2d 87, 90 (2d Cir.), vacated and remanded, 429 U.S. 909, 97 S.Ct. 299, 50 L.Ed.2d 277, aff’d on remand, 547 F.2d 772 (2d Cir. 1976), cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978); United States v. Minnesota Mining & Mfg. Co., 551 F.2d 1106, 1112 (8th Cir. 1977); United States v. Henderson, 525 F.2d 247, 250 & n. 12 (5th Cir. 1975). The supervisory authority to dismiss an indictment is discussed but not applied in, e.g., United States v. Blue, 384 U.S. 251, 254-55, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 247-48, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. petition filed, - U.S. -, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); United States v. Fields, 592 F.2d 638 (2d Cir. 1978), cert. petition filed,U.S.-, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978); United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977); United States v. Baskes, 433 F.Supp. 799, 804-07 (N.D.Ill. 1977) (requiring amplification before exercising power to dismiss). For discussion of the supervisory power and of prophylactic rules thereunder which affect criminal trials, see generally, e.g., McNabb v. United States, 318 U.S. 332, 340-42, 63 S.Ct. 608, 87 L.Ed. 819 (1956); Olmstead v. United States, 277 U.S. 438, 469-71, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Holmes, J., dissenting); United States v. Fioraventi, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846, 848 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961); Note, The Supervisory Power of the Federal Courts, 76 Harv.L. Rev. 1656 (1963). . McNabb v. United States, supra, 318 U.S. at 340, 63 S.Ct. 608. This" }, { "docid": "22241401", "title": "", "text": "dismiss the indictments in the exercise of our supervisory power over the administration of criminal justice. Whatever the scope of that authority in the aftermath of United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), it does not permit courts to fashion their own “sub-constitutional” limitations on the conduct of law enforcement agents. Prior to Payner, the supervisory power was used to fashion and enforce rules for judicial proceedings in order to safeguard important constitutional rights. See, e.g., United States v. Mohabir, 624 F.2d 1140, 1151-53 (2d Cir. 1980) (right to counsel); United States v. Hinton, 543 F.2d 1002, 1010 (2d Cir.) (self-incrimination), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). And, on infrequent occasions, the power was used to discipline prosecutorial irregularities, particularly in front of grand juries. See United States v. Jacobs, 531 F.2d 87 (2d Cir.), vacated mem., 429 U.S. 909, 97 S.Ct. 299, 50 L.Ed.2d 277, reinstated, 547 F.2d 772 (2d Cir. 1977), cert. dismissed, 436 U.S. 81, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978). It has not been used as a general corrective authority over the conduct of criminal investigations, and, in light of Payner, its scope is surely not to be expanded. Appellants are entitled to no more from the courts than a testing of Abscam against constitutional standards. IV. We consider next a series of claims that arise in one or another of the three trials. A. Myers Trial 1. Sufficiency of Evidence. Criden and Johanson both challenge the sufficiency of the evidence to establish that they knew the purpose for which the money was paid to Myers. The record shows their awareness at the early stages of the plan; their law partner, Cook, testified that after the meeting on the yacht, Criden and Johanson told him about the sheik’s concern for asylum in the United States and that payment to Congressmen would assure a “friendly face” who “owed him a favor” and would “help” him. Criden’s claimed assurance that the Congressmen would never have to do anything does not lessen his and Johanson’s" } ]

[ { "docid": "18613402", "title": "", "text": "occurs which is clear error under the law at the time of trial. Because the law is clear, the defendant is on notice of the duty to object. If he fails to object, he not only forfeits his legal right to have the error corrected, but he impedes the judicial process by failing to prompt the trial judge to make timely correction of the error. See id. at -, 113 S.Ct. at 1776. It is proper to hold a defendant accountable for that failure, and to deter defendants from strategically withholding an objection in order to seek reversal on appeal. The defendant rightly bears the burden of proving prejudice in the ordinary case. The situation is different when a supervening decision alters settled law. A defendant clearly has no duty to object to a jury instruction that is based on firmly established circuit authority. He cannot be said to have “forfeited a right” by not making an objection, since at the time of trial no legal right existed. If we were to penalize defendants for failing to challenge entrenched precedent, we would be insisting upon an omniscience on the part of defendants about the course of the law that we do not have as judges. Imposing such a duty would only encourage frivolous objections and appeals. When the source of plain error is a supervening decision, the defendant has not been derelict in failing to object at trial, and there is thus no cause to shift the burden of proving prejudice to the defendant. In this special context, as in harmless error review under Rule 52(a), the government must show that the error did not affect the defendant’s substantial rights. Our approach differs somewhat from that taken by the D.C. Circuit in United States v. Washington, 12 F.3d 1128 (D.C.Cir.1994), petition for cert. filed, (U.S. Apr. 14, 1994) (No. 93-8722). Washington held that “plain error” under Rule 52(b) must be plain under the law at the time of trial, and that a court of appeals makes a separate inquiry under the supervening-decision doctrine. Id. at 1138. However, we agree with" } ]

[ { "docid": "9401712", "title": "", "text": "bribery and kickbacks. Defendant now argues that the holding in Skilling renders the jury’s verdict constitutionally infirm. 1. Standard of Review The proper standard of review for this claim merits some discussion. Defendant did not object to the jury instructions in the district court. Generally, a failure to object to jury instructions means that appellate courts may review the instructions only for “plain error that affects substantial rights.” Fed.R.Crim.P. 52(b); see Fed.R.Crim.P. 30(d). The plain-error standard applies even if, as is the case here, there were no legal grounds for challenging the instructions at the time they were given, but such legal grounds have since arisen due to a new rule of law arising between the time of conviction and the time of appeal. See Johnson v. United States, 520 U.S. 461, 464-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The plain-error standard of review dictates that reversal is warranted only where there has been (1) error; (2) that is plain; (3) that affects substantial rights; and (4) where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 466-67, 117 S.Ct. 1544; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Davenport, 519 F.3d 940, 943 (9th Cir.2008). Generally, the defendant bears the burden of persuasion on the third prong (affects substantial rights) of the plain-error test. See Olano, 507 U.S. at 741, 113 S.Ct. 1770. Defendant argues, however, that the burden of persuasion shifts to the prosecution when, as is true in this case, the error was not clear at the time of the conviction, but a supervening decision renders it so by the time of appeal. The Second Circuit has held that the burden does shift in these sorts of cases. United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469,139 L.Ed.2d 352 (1997). This circuit has not adopted the Viola burden-shifting rule and contrary to Defendant’s assertion, the framework has not been adopted in other circuits" }, { "docid": "14083743", "title": "", "text": "consideration. Thus, ■we will address this argument under the plain error standard provided in Rule 52(b). Under the plain error test of Rule 52(b), “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (internal quotation marks omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks omitted). “A plain error is an error so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United States v. Gore, 154 F.3d 34, 43 (2d Cir.1998) (internal quotation marks and citation omitted). Vasquez bears the burden of persuasion to show that the district court’s charge amounts to plain error. United States v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000). Effect on interstate or foreign commerce is the jurisdictional element of a VCAR offense; therefore, the government is required to provide evidence of such an effect. See id., 223 F.3d at 118. The Supreme Court has held that the Fifth and Sixth Amendments “give[ ] a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Following from this reasoning, the jury is constitutionally required to determine, as an element of a VCAR offense, whether the racketeering enterprise affected interstate or foreign commerce. On the other hand, we have also held that where “the [racketeering] enterprise’s business is narcotics trafficking, that enterprise must be viewed" }, { "docid": "3690633", "title": "", "text": "determination that the error was “plain.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Plain” for this purpose is defined as “clear” or “obvious.” Id. (internal quotation marks omitted). See also United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (noting that “the error must be so plain that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it” (internal quotation marks omitted)). Because in this case the district court omitted an element of the witness retaliation offense in its charge to the jury, the error was clear and obvious and therefore plain. Indeed, without awareness of the government’s burden to prove that Davy had been in contact with federal authorities prior to being attacked, the jury may have quite reasonably convicted Hart and Draper pursuant to Davy’s numerous contacts with the local police. 3. Affected Substantial Rights and the Fairness, Integrity, or Public Reputation of Judicial Proceedings Although the jury instructions were in error, and the error was plain, the plain error standard is not met unless the error “affect[ed] substantial rights.” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (internal quotation marks omitted). This means the error was “prejudicial” in that it “affected the outcome of the district court proceedings.” Id. Even then, however, we retain the discretion to decline to correct an error even if it affects substantial rights. Id. at 735, 113 S.Ct. 1770. The standard applied in making this determination is whether “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and brackets omitted). In this matter, for example, had the government adduced sufficient evidence that Davy did, in fact, have contacts with federal agents prior to the beating, the inadequate jury charge might not have affected the defendants’ substantial rights, nor would the fairness of the judicial proceedings necessarily be called into question. In contrast, this Circuit has previously held that the “failure by the [government to adduce sufficient evidence ... is" }, { "docid": "10733491", "title": "", "text": "substantial rights. If all three conditions are met, we may exercise our discretion to notice the error, provided that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Carter, 489 F.3d 528, 537 (2d Cir.2007) (internal citation omitted). In a further twist, however, we have traditionally applied a “modified” plain error analysis in cases “where, as here, the source of plain error is a supervening decision.” United States v. Henry, 325 F.3d 93, 100 (2d Cir.2003) (internal quotation marks omitted). In these instances, the government, not the defendant, “bears the burden to demonstrate that the error ... was harmless.” Id. (internal quotation marks omitted). Yet, as a number of panels have noted, it is unclear whether this standard remains in force following the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), which applied a plain error standard despite a supervening change in law. Nonetheless, these panels have often found it unnecessary to squarely address the issue, because it did not affect the outcome, and we reach the same conclusion here. See, e.g., United States v. Lee, 549 F.3d 84, 89 n. 2 (2d Cir.2008); United States v. Thomas, 274 F.3d 655, 668 (2d Cir.2001). The Court need not resolve this open question because, whether plain error or some modified approach is applied, our conclusions would be the same. In determining whether error occurred, this Court examines the jury instructions based on “the law existing at the time of the appeal.” See United States v. Ballistrea, 101 F.3d 827, 835 (2d Cir.1996). Thus, while the district court’s instructions were consistent with the law of this circuit at the time, they are measured here against the current state of our law. B. Analysis Since the defendants’ trial, we have rejected the view that an interstate effect can be presumed wherever the object of a robbery was to obtain illegal drugs or drug proceeds. Instead, we have held that this element must be found by a jury beyond a reasonable doubt, even where the robbery" }, { "docid": "14528578", "title": "", "text": "to vacate Curbelo’s conviction. This is so because the Government has failed to meet its burden of demonstrating that the error was harmless, even if we assume the error is not of constitutional dimension and we thus apply the harmless error standard announced by the Court in Kotteakos. If the defendant fails to raise an objection to an error at trial, we review the error under the plain error standard of Rule 52(b). Under that rule, the defendant bears the burden of demonstrating that a plain error affected his substantial rights, and even if he meets this burden, an appellate court has discretion to ignore the error and should do so unless it “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted and alteration in original). In contrast, if a defendant preserves his objection to an error, an appellate court reviews the error under the harmless error standard of Rule 52(a) — a standard significantly more favorable to the defendant. Under Rule 52(a), the Government bears the burden of demonstrating that the error did not affect the defendant’s substantial rights. If the Government fails to meet that burden, an appellate court must reverse; it has no discretion to ignore the error. Id. at 734-35, 113 S.Ct. 1770. The Government concedes that Curbelo preserved his objection to the error here and that (if the error were not structural) our review is under the more-favorable-to-the-defendant standard of Rule 52(a), with the Government bearing the burden of proving the error did not affect Curbelo’s substantial rights. In its landmark decision in Kotteakos, the Supreme Court explained that when reviewing a nonconstitutional error under Rule 52(a), an appellate court must determine if the Government has proved “with fair assurance ... that the judgment was not substantially swayed by the error.” 328 U.S. at 765, 66 S.Ct. 1239. Moreover, in determining if the Government has met this burden, a court must not “strip [ ] the erroneous action from the whole.” Id. Thus, [t]he inquiry cannot be merely whether there was" }, { "docid": "22912186", "title": "", "text": "advised Wells that he could renew his Rule 29 motions made prior to the verdict, however, he failed to do so. See Tr. at 520. There is no evidence that Wells intentionally chose not to raise the merger issue for strategic reasons or knowingly .and intelligently failed to raise the issue. We find, therefore, that Wells’s “failure to make the timely assertion” of the “merger” issue at trial amounted to a “forfeiture,” rather than a “waiver.” Olano, 507 U.S. at 733, 113 S.Ct. 1770 (quotation marks and citation omitted). As a result, we may review the district court’s failure to merge Wells’s distribution and possession charges for plain error, pursuant to Rule 52(b). Id. 2. Plain Error Review Rule 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed.R.Crim.P. 52(b). In Olano, the Supreme Court set out specific limitations on appellate courts’ ability “to correct an error not raised at trial,” holding that “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that !affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotations marks and citations omitted); see United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994) (adopting the Olano limitations), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Overall, Wells bears the burden of persuasion on appeal to show that the district court committed plain error. See Viola, 35 F.3d at 41. a. Was the Error “Plain”? Wells contends that the “merger” rule for convictions under the provisions of § 841(a)(1) was “plain” under current law at the time of his trial. In support of this contention, Wells relies on decisions" }, { "docid": "16320439", "title": "", "text": "been decided at the time of trial, we must apply a “modified plain error” standard. See United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994); see also United States v. Ballistrea, 101 F.3d 827, 835 (2d Cir.1996) (applying Viola), cert. denied, — U.S. -, 117 S.Ct. 1327, 137 L.Ed.2d 488 (1997). In Viola, we held: When the source of plain error is a supervening decision, the defendant has not been derelict in failing to object at trial, and there is thus no cause to shift the burden of proving prejudice to the defendant. In this special context, as in harmless error under Rule 52(a), the government must show that the error did not affect the defendant’s substantial rights. 35 F.3d at 42. Therefore, we apply plain error review, but the burden is on the government to show that any error did not affect the defendant’s substantial rights. In Bailey, the Supreme Court held that “use” under § 924(c)(1) means “active employment”. — U.S. at-, 116 S.Ct. at 506. The Court explained that “[t]he active-employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.... But the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).” Id. at 508. We have interpreted Bailey to require jury instructions on “using” that include “active-employment connotations.” United States v. Pimentel, 83 F.3d 55, 60 (2d Cir.1996). In this ease, the court did not charge that “use” meant “active employment” of a gun. Nor did the court effectively differentiate between “use” and “carry”, and the terms were arguably conflated. On the other hand, nothing in the charge suggested that “mere possession” or “proximity and accessibility” of a gun were sufficient to establish use, which was the Supreme Court’s concern in Bailey. See Bailey, — U.S. at -, 116 S.Ct. at 506; United States v. Melendez, 90 F.3d 18, 20 (2d Cir.1996). Furthermore, because the district court gave little explanation of the meaning of “use”, the jury pre sumably gave the term its ‘“ordinary or natural’ meaning,” Bailey, — U.S." }, { "docid": "22912187", "title": "", "text": "‘plain,’ and (3) that !affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotations marks and citations omitted); see United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994) (adopting the Olano limitations), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Overall, Wells bears the burden of persuasion on appeal to show that the district court committed plain error. See Viola, 35 F.3d at 41. a. Was the Error “Plain”? Wells contends that the “merger” rule for convictions under the provisions of § 841(a)(1) was “plain” under current law at the time of his trial. In support of this contention, Wells relies on decisions from other circuits and dicta from this Court. While we ultimately agree with Wells that some form of the “merger” rule is “plain,” we reach this conclusion through different reasoning reflected in the discussion below. Under Rule 52(b) an error is “plain” if it is “clear” or “obvious” under current law. Olano, 507 U.S. at 734, 113 S.Ct. 1770; see United States v. Bryan, 122 F.3d 90, 92 (2d Cir.1997). A “plain” error is “an error so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United States v. Tillem, 906 F.2d 814, 825 (2d Cir.1990). As a general principle, courts may not mete out multiple punishments for the same criminal conduct unless Congress intended such multiple punishments. See Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Prince v. United States, 352 U.S. 322, 327-28, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Blockburger, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306" }, { "docid": "22380642", "title": "", "text": "Crusoe” hypothetical to explain circumstantial evidence. A criminal defendant is required to state “distinctly” the grounds for his objection in order to preserve it for appeal. United States v. Biaggi, 909 F.2d 662, 697 (2d Cir.1990) (quoting Fed.R.Crim.P. 30). \"The purpose of this provision is to provide the trial court with an opportunity to correct any error in the jury instructions before the jury begins deliberating.\" United States v. Masotto, 73 F.3d 1233, 1237 (2d Cir.1996), cert. denied, - U.S. , 117 S.Ct. 54, 136 L.Ed.2d 18 (1996). When an objection is properly preserved, we review that ground for error and may reverse only if the government is unable to demonstrate that the error was harmless, that is, that the error did not affect the defendant's substantial rights or influence the jury's verdict. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 (under the harmless error standard, the government \"bears the burden of persuasion with respect to prejudice.\"); United States v. Mussaleen, 35 F.3d 692, 695 (2d Cir.1994); see also Fed. R.Crim.P. 52(a). \"[W]here no timely objection [is] made to the instruction ... we may reverse ... only if the district court committed plain error in its charge.\" Latsis v. Chandris, Inc., 20 F.3d 45, 49 (2d Cir.1994) (internal quotation marks and citations omitted), aff'd, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Under the plain error standard, \"[i]t is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice.\" Olano, 507 U.S. at 734, 113 S.Ct. 1770. That showing must include \"a miscarriage of justice, or ... an obvious instance of misapplied law.\" Latsis, 20 F.3d at 49 (internal quotation marks and citations omitted); see also Fed.R.Crim.P. 52(b); Olano, 507 U.S. at 732, 113 S.Ct. 1770 (we should not exercise that discretion \"unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings\" (citations, internal quotation marks and alteration omitted)). Applying these principles to the instant case, the defendants' objection to the charge for improperly attributing more weight to circumstantial evidence than to direct evidence was \"distinctly\" stated" }, { "docid": "9846660", "title": "", "text": "(2d Cir.1996) (applying Sorrentino ). Santiago argues, however, that the Supreme Court’s recent decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), have altered the settled law in this Circuit concerning the permissible scope of § 922(g) under the Constitution. Santiago did not advance his challenge to § 922(g) before the District Court. Nevertheless, he urges us to review his conviction for plain error pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 52(b); see United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Rule 52(b) places three limits on appellate authority to notice errors not preserved at trial: First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which at minimum means “clear under current law.” Third, the plain error must ... “affeet[ ] substantial rights,” which normally requires a showing of prejudice. United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (quoting Viola, 35 F.3d at 41). Once the reviewing court is satisfied that the forfeited error is “plain” and “affect[s] substantial rights,” the court has the authority to correct that error “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation marks and alterations omitted). When the source of the alleged error is a supervening judicial decision that alters “a settled rule of law in the circuit,” as Santiago alleges, we apply a “modified plain error rule” in which the government bears the burden of persuasion as to whether substantial rights have been affected. Viola, 35 F.3d at 42. Contrary to Santiago’s assertion, however, neither Morrison nor Jones has altered the settled law in this Circuit concerning the applicability of § 922(g) to the conduct for which" }, { "docid": "22876076", "title": "", "text": "“use” requirement; “[rjather, it is enough if the firearm is present for protection and to facilitate the likelihood of success” (internal quotation marks omitted)). During the pen-dency of this appeal, however, the Supreme Court issued its decision in Bailey, clearly articulating a standard for establishing “use” contrary to that previously employed by this circuit. As the Court recently has explained, an error is plain at least when “the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Johnson v. United States, — U.S.-,-, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); see David, 83 F.3d at 645 (holding that an error is plain when “an objection at trial would have been indefensible because of existing law, but a supervening decision prior to appeal reverses that well-settled law”). The error, therefore, was plain. 3. Third, Phillips must establish that the error affected his substantial rights, i.e., that it was prejudicial. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. As the Supreme Court noted in Olano, this prejudice inquiry differs from the review for harmlessness required when an error is preserved by timely objection in the district court in that, on plain-error review, “[i]t is the defendant rather than the Government who bears the burden of persuasion.” Id. This difference, moreover, is not an insignificant one. On harmless-error review, a defendant is entitled to reversal of his conviction unless the Government can establish that “the error ‘does not affect substantial rights.’” Id. at 735, 113 S.Ct. at 1778 (quoting Fed.R.Crim.P. 52(a)). In contrast, on plain-error review, a defendant is entitled to reversal only upon a showing that “the error does ‘affee[t] substantial rights,’ ” that is, that the error actually affected the outcome of the proceedings. Id. (alteration in original) (quoting Fed.R.Crim.P. 52(b)); see United States v. Turcks, 41 F.3d 893, 898 (3d Cir.1994) (explaining that defendant’s burden on plain-error review “is to show that the outcome of [the] trial was actually affected” by the error); United States v. Miro, 29 F.3d 194, 200 (5th Cir.1994) (noting that in order" }, { "docid": "4246251", "title": "", "text": "there are any objections to the sentence and the appellant raises none, we review the sentence only for plain error. United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). After pronouncing Bailey’s sentence, the district court asked Bailey whether he had any objections; he responded in the negative. The plain-error standard applies here, because Bailey failed to raise his objections to the district court below. For this court to find plain error, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Generally, an error does not affect substantial rights unless it is prejudicial — in other words, the error “must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. The defendant bears the burden of persuasion that the error was prejudicial. Id. If the first three conditions for plain error are met, “an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (alteration in original) (internal quotation marks omitted) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). In the case at bar, we assume without deciding that the district court made procedural errors at sentencing. Bailey has not provided us with any argument alleging that his substantial rights were affected by these errors. Because Bailey has failed to meet his burden to show that his substantial rights were affected, we conclude that the district court did not commit plain error with respect to the procedural reasonableness of Bailey’s sentence. C. Substantive Reasonableness Bailey argues that his sentence is substantively unreasonable. Sentences within the Guidelines range are afforded a rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), petition for cert. filed, (July 11, 2006) (No." }, { "docid": "6513313", "title": "", "text": "U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); see also United States v. Keys, 67 F.3d 801, 810 (9th Cir.1995). The reason for placing the burden on the government is explained by the Second Circuit in Viola: In the ordinary case, an event, such as the issuance of a jury instruction, occurs which is clear error under the law at the time of trial. Because the law is clear, the defendant is on notice of the duty to object. If he fails to object, he not only forfeits his legal right to have the error corrected, but he impedes the judicial process by failing to prompt the trial judge to make timely correction of the error. It is proper to hold a defendant accountable for that failure, and to deter defendants from strategically withholding an objection in order to seek reversal on appeal. The defendant rightly bears the burden of proving prejudice in the ordinary case. The situation is different when a supervening decision alters settled law. A defendant clearly has no duty to object to a jury instruction that is based on firmly established circuit authority. He cannot be said to have “forfeited a right” by not making an objection, since at the time of trial no legal right existed. If we were to penalize defendants for failing to challenge entrenched precedent, we would be insisting upon an omniscience on the part of defendants about the course of the law that we do not have as judges. Imposing such a duty would only encourage frivolous objections and appeals. When the source of plain error is a supervening decision, the defendant has not been derelict in failing to object at trial, and there is thus no cause to shift the burden of proving prejudice to the defendant. In this special context, as in harmless error review under Rule 52(a), the government must show that the error did not affect the defendant’s substantial rights. Viola, 35 F.3d at 42. Nonetheless, I believe that the government has demonstrated that the failure to instruct on materiality did not affect Gilbert’s substantial rights," }, { "docid": "16064713", "title": "", "text": "jury on the legal standard under 18 U.S.C. § 924(c) because the charge did not make clear that “use” requires “active employment” of a gun, as required by Bailey v. United States, 516 U.S. 137, 143-48, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), a case decided after the appellants were convicted. Because it had already declined to grant a new trial on the murder and murder conspiracy counts, the district court declined to address the argument presented below that if their murder and murder conspiracy convictions were vacated, appellants’ convictions for firearms violations under § 924(c) must also be reversed. Section 18 U.S.C. § 924(c) provides additional penalties for “any person who, during and in relation to any crime of violence ... uses or carries a firearm.” The Supreme Court has interpreted “use” to require “active employment,” which “includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Bailey, 516 U.S. at 148, 116 S.Ct. 501. The Court specifically excluded simple possession from the definition of “use”: “the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).” Bailey, 516 U.S. at 149, 116 S.Ct. 501. Although we normally review only for plain error when defendants fail to object at trial to a given instruction, here the government conceded that we review the district court’s instruction under a modified plain error standard: When the source of plain error is a supervening decision, the defendant has not been derelict in failing to object at trial, and there is thus no cause to shift the burden of proving prejudice to the defendant. In this special context ... the government must show that the error did not affect the defendant’s substantial rights. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994). As noted above, an erroneous jury instruction requires a new trial unless the error is harmless. See United States v. Masotto, 73 F.3d 1233, 1239 (2d Cir.1996). To meet its burden of showing that the error was harmless, the government responds that while the instructions here neither explained that “use” means" }, { "docid": "10733490", "title": "", "text": "element is satisfied. The law, however, has since changed. Proof of drug trafficking is no longer regarded as automatically affecting interstate commerce; instead, even in drug cases, the jury must find such an effect as part of its verdict. See Parkes, 497 F.3d at 229-30; United States v. Gomez, 580 F.3d 94, 100 (2d Cir.2009). The appellants correctly contend that the jury never had an opportunity to make this crucial jurisdictional finding because of the district court’s instructions. A. Standard of Review Normally, we would review the failure to charge an element of a crime for harmless error. See Neder v. United States, 527 U.S. 1, 9-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (applying harmless-error analysis where an element of the offense was withheld from the jury over defendant’s objection); Monsanto v. United States, 348 F.3d 345, 349-51 (2d Cir.2003). But where, as in this case, a defendant has failed to timely object, we generally review for plain error. This analysis requires “(1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. If all three conditions are met, we may exercise our discretion to notice the error, provided that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Carter, 489 F.3d 528, 537 (2d Cir.2007) (internal citation omitted). In a further twist, however, we have traditionally applied a “modified” plain error analysis in cases “where, as here, the source of plain error is a supervening decision.” United States v. Henry, 325 F.3d 93, 100 (2d Cir.2003) (internal quotation marks omitted). In these instances, the government, not the defendant, “bears the burden to demonstrate that the error ... was harmless.” Id. (internal quotation marks omitted). Yet, as a number of panels have noted, it is unclear whether this standard remains in force following the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), which applied a plain error standard despite a supervening change in law. Nonetheless, these panels have often found it unnecessary to squarely address the issue, because" }, { "docid": "17873953", "title": "", "text": "the standard more favorable to a defendant. To justify reversal of a conviction under that standard, there must be (1) error, (2) that “affect[s] substantial rights” — i.e., that is prejudicial. Fed.R.Crim.P. 52(a); see Olano, 507 U.S. at 731, 734, 113 S.Ct. 1770. To meet the plain error standard, both of these requirements must be satisfied and the error must also be “plain.” Fed.R.Crim.P. 52(b); see Olano, 507 U.S. at 734, 113 S.Ct. 1770. Even then, although a court of appeals has discretion to correct an error, there is a fourth consideration: “[T]he court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (citations omitted). And, critical to our analysis here, the Supreme Court has indicated that it is “not likely an error can have that effect where the evidence against the defendant is ‘overwhelming.’ ” United States v. Gartmon, 146 F.3d 1015, 1024 (D.C.Cir.1998) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718 (1997)). Because Perkins did not object to the district court’s jury instructions at trial, his claim of error would ordinarily be reviewed under the plain error standard. He correctly points out, however, that this circuit has applied harmless error review to post-Bailey claims of instructional error even when defendants did not raise them at their pre-Bailey trials. See, e.g., United States v. Toms, 136 F.3d 176, 180-81 (D.C.Cir.1998); United States v. Smart, 98 F.3d 1379, 1393 (D.C.Cir.1996); see also United States v. Hudgins, 120 F.3d 483, 486-88 n. 3 (4th Cir.1997). In those cases, we have relied on the circuit’s “supervening-decision doctrine,” which permits appellate review as if an objection had been made below when prevailing circuit law at the time of the trial would have made such an objection futile. See Toms, 136 F.3d at 180 & n. 5; Smart, 98 F.3d at 1393; United States v. Lin, 101 F.3d 760, 771 (D.C.Cir.1996). Thus in Toms, where the trial court instructed the jury without objection that the “government need not show" }, { "docid": "16320438", "title": "", "text": "I have already explained those terms to you. In order for the government to sustain its burden of proof that the defendant used or carried a firearm, it is not necessary for it to establish that the weapon was fired. (Tr. at 3276-77). Because no defendant objected to this instruction at trial, we review the charge for plain error. See United States v. Birbal, 62 F.3d 456, 459 (2d Cir.1995). For a conviction to be reversed for plain error, “(1) there must be an error; (2) it must be clear or obvious; and (3) it must affect substantial rights, which in most eases ... means that the error must have been prejudicial.” Id. at 461 (internal quotations and alteration omitted). “If an error meets these requirements, a court of appeals has authority to order correction, but is not required to do so. The applicable test is whether the error seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations and citation omitted; alteration in Birbal). However, because Bailey had not yet been decided at the time of trial, we must apply a “modified plain error” standard. See United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994); see also United States v. Ballistrea, 101 F.3d 827, 835 (2d Cir.1996) (applying Viola), cert. denied, — U.S. -, 117 S.Ct. 1327, 137 L.Ed.2d 488 (1997). In Viola, we held: When the source of plain error is a supervening decision, the defendant has not been derelict in failing to object at trial, and there is thus no cause to shift the burden of proving prejudice to the defendant. In this special context, as in harmless error under Rule 52(a), the government must show that the error did not affect the defendant’s substantial rights. 35 F.3d at 42. Therefore, we apply plain error review, but the burden is on the government to show that any error did not affect the defendant’s substantial rights. In Bailey, the Supreme Court held that “use” under § 924(c)(1) means “active employment”. — U.S. at-, 116 S.Ct. at 506. The Court explained that “[t]he active-employment" }, { "docid": "9846661", "title": "", "text": "at minimum means “clear under current law.” Third, the plain error must ... “affeet[ ] substantial rights,” which normally requires a showing of prejudice. United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (quoting Viola, 35 F.3d at 41). Once the reviewing court is satisfied that the forfeited error is “plain” and “affect[s] substantial rights,” the court has the authority to correct that error “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation marks and alterations omitted). When the source of the alleged error is a supervening judicial decision that alters “a settled rule of law in the circuit,” as Santiago alleges, we apply a “modified plain error rule” in which the government bears the burden of persuasion as to whether substantial rights have been affected. Viola, 35 F.3d at 42. Contrary to Santiago’s assertion, however, neither Morrison nor Jones has altered the settled law in this Circuit concerning the applicability of § 922(g) to the conduct for which he was convicted. First, Morrison does not alter the principles under the Commerce Clause that led us to uphold § 922(g) in Sorrentino. Under the framework set forth by the Supreme Court in Lopez, Congress permissibly may regulate three broad categories of activity pursuant to its authority under the Commerce Clause. First, Congress may directly regulate the use of the channels of commerce. See Lopez, 514 U.S. at 558, 115 S.Ct. 1624. Second, Congress may “regulate and protect the instrumentalities of commerce, or persons and things in interstate commerce, even though the threat may come only from intrastate activities.” Id. Third, Congress may regulate “those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624. In Morrison, the Supreme Court held that the civil remedy provision of the Violence Against Women Act, 42 U.S.C. § 13981, unconstitutionally exceeded Congress’s authority under the Commerce Clause. See Morrison, 120 S.Ct. at 1754. In reaching this conclusion, the Supreme Court explicitly endorsed its analysis in" }, { "docid": "16320437", "title": "", "text": "these arguments seriatim. A. Bailey Gallagher argues that the “use” instruction was fatally flawed because it did not require sufficient evidence to show an “active employment” of the firearm, as required by Bailey, — U.S. at -, 116 S.Ct. at 506, and therefore conflated the meanings of “use” and “carry”. We hold any error to be harmless. The court charged the jury on the gun charges as follows: If you find the defendant guilty of the corresponding violent crime, and when I say “corresponding” the violent crime referred to in the particular count, you must also find that the government has proved the following three elements beyond a reasonable doubt before you can find the defendant guilty of the firearm count you are considering: First, that on or about the date charged, the defendant knowingly and intentionally used or carried a firearm; The first element the government must prove beyond a reasonable doubt is that the defendant knowingly and intentionally used or carried a firearm on or about the date charged in the indictment, as I have already explained those terms to you. In order for the government to sustain its burden of proof that the defendant used or carried a firearm, it is not necessary for it to establish that the weapon was fired. (Tr. at 3276-77). Because no defendant objected to this instruction at trial, we review the charge for plain error. See United States v. Birbal, 62 F.3d 456, 459 (2d Cir.1995). For a conviction to be reversed for plain error, “(1) there must be an error; (2) it must be clear or obvious; and (3) it must affect substantial rights, which in most eases ... means that the error must have been prejudicial.” Id. at 461 (internal quotations and alteration omitted). “If an error meets these requirements, a court of appeals has authority to order correction, but is not required to do so. The applicable test is whether the error seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations and citation omitted; alteration in Birbal). However, because Bailey had not yet" }, { "docid": "2972000", "title": "", "text": "outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)); see, e.g., United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The Marcus Court emphasized that [t]he third criterion specifies that a “plain error” must “a£fec[t]” the appellant’s “substantial rights.” In the ordinary case, to meet this standard an error must be “prejudicial,” which means that there must be a reasonable probability that the error affected the outcome of the trial, Marcus, 560 U.S. at 262, 130 S.Ct. 2159 (quoting Olano, 507 U.S. at 734-35, 113 S.Ct. 1770), and that the “fourth ‘plain error’ criterion ... permits an appeals court to recognize ‘plain error’ only if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’ ” Marcus, 560 U.S. at 265, 130 S.Ct. 2159 (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544). The burden of meeting the above criteria for relief under plain-error analysis is on the defendant. See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The government may point to parts of the record in an effort to counter any ostensible showing of prejudice the defendant may make. See, e.g., United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Boyland argues that, where the error a defendant raises on appeal results from a supervening Supreme Court decision, we should apply the modified version of the plain error test discussed in United States v. Viola, 35 F.3d 37, 41-43 (2d Cir. 1994) (“Viola”), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352" } ]

[ { "docid": "1056014", "title": "", "text": "no evidence showing that he would be unable to practice atheism effectively without the benefit of a weekly study group. The defendants apparently allow him to study atheist literature on his own, consult informally with other atheist inmates, and correspond with members of the atheist groups he identified, and Kaufman offered nothing to suggest that these alternatives are inadequate. Moreover, an inmate is not entitled to follow every aspect of his religion; the prison may restrict the inmate’s practices if its legitimate penological interests outweigh the prisoner’s religious interests. Tarpley, 312 F.3d at 898; Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir.1996). The defendants submitted an affidavit stating that allowing any group of inmates to congregate for a meeting raises security concerns and requires staff members to supervise the group. Prison officials unquestionably have a legitimate interest in maintaining institutional security, see, e.g., Lindell v. Frank, 377 F.3d 655, 658-59 (7th Cir.2004), and we cannot say that their denial of Kaufman’s request for a study group was not rationally related to that interest. Accordingly, the district court properly granted summary judgment on Kaufman’s claim insofar as it arises under the Free Exercise Clause. The same is not true with respect to Kaufman’s Establishment Clause claim. The Supreme Court reaffirmed the utility of the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), in McCreary, 125 S.Ct. at 2732-35. Compare Van Orden v. Perry, — U.S.-,---, 125 S.Ct. 2854, 2860-61, 162 L.Ed.2d 607 (2005) (plurality questions continuing utility of Lemon test). A government policy or practice violates the Establishment. Clause if (1) it has no secular purpose, (2) its primary effect advances or inhibits religion, or (3) it fosters an excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105; Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir.2000). The Establishment Clause also prohibits the government from favoring one religion over another without a legitimate secular reason. See Linnemeir v. Bd. of Trustees of Purdue Univ., 260 F.3d 757, 759 (7th Cir.2001); Metzl v. Leininger, 57 F.3d 618," } ]

[ { "docid": "23511211", "title": "", "text": "in his cell with items approved for personal possession. The TDCJ’s policy also allows Mayfield the opportunity to meet individually with an approved spiritual advisor twice monthly. The TDCJ submitted evidence that Mayfield has access to Odinist religious materials in the unit’s spiritual library. Klaus Adams, the Hughes Unit chaplain, averred that he banned a single book related to Odinism, but that many Odinist prisoners use the spiritual library. Mayfield responds that personal worship in his cell is made impossible because the TDCJ does not provide any of the necessary items for Odinist religious practice, and that Odinism is, by its nature, a religion of communal worship. Mayfield also submits evidence showing that the Hughes Unit refused to approve a number of books on Odinism, specifically books related to runes. While the record presents minor unresolved issues of fact regarding alternative means available to Mayfield, these issues of fact are not material and the record sufficiently establishes that May-field has access to alternative means of worship. As to Taylor’s third prong, we recognize the heavy burden on guards, other inmates, and prison resources that could result from requiring the TDCJ to accommodate the Odinists’ request. Allowing the Odinists to meet without a volunteer would require the TDCJ to pull an officer from other necessary security duty in order to monitor the religious service. The Odin-ists are a small group, a mere 1.4% of the Hughes Unit’s inmate population. If all 140 religious groups in the TDCJ requested the ability to meet without an outside volunteer, prison security could be seriously compromised by the need to remove personnel from their usual security posts. Finally, other than the request to allow the Odinists to meet without an outside volunteer, Mayfield presents no other alternative means of accommodation. The above paragraph indicates the strain that this particular accommodation could impose on prison security. This potential strain represents more than a de minimis cost to TDCJ’s valid penological interest in maintaining security. However, the record leaves us to question why the Native American religious group can meet without imposing more than a de minimis" }, { "docid": "4348417", "title": "", "text": "v. Cooke, 923 F.Supp. 1104 (E.D.Wis. 1996) (upholding confiscation of material that could incite racial hostility or violence), it would be improper to characterize plaintiffs claim as legally frivolous or malicious or as failing to state a claim in the absence of evidence that the restriction is reasonable. Alston v. DeBruyn, 13 F.3d 1036, 1039^0 (7th Cir.1994) (concluding that district court abused its discretion by dismissing plaintiffs free exercise complaint as frivolous where record did not contain evidence of prison’s need for restriction). Plaintiffs allegation that defendants denied him a copy of “The NPKA Book of Blotar” is sufficient to support a First Amendment claim at this stage. Accordingly, he will be allowed to proceed against defendants Frank, Casperson, Boatwright, Berge, Boughton, Peter Hui-bregtse, Judith Huibregtse, Raemisch, Brown and Overbo on this theory. b. “Tower of Wotan” and “Creed of Iron” Plaintiffs claims that he was denied copies of “Tower of Wotan” and “Creed of Iron” raise an arguable First Amendment violation. His claim is based on a letter he received that was sent on May 29, 2003, in which he was told that the books would be destroyed if he did not send them out of the institution. Plaintiff brought this same claim against a slightly different set of defendants in a previous case in this court. Borzych v. Frank, 03-C-0575-C, 2004 WL 67642 (W.D.Wis. January 5, 2004) (plaintiff stated free exercise claim when he alleged that he received May 29, 2003 letter informing him that his copies of “Tower of Wotan” and “Creed of Iron” would be sent out of institution). In that case, I allowed plaintiff to proceed against defendants Frank and Casperson, among others. The similarity of the two cases raises the question whether plaintiff can proceed on these claims, in this case or whether the doctrine of res judicata bars him from doing so. In general, “[t]he doctrine of res judicata (claim preclusion) requires litigants to join in a single suit all legal and remedial theories that concern a single transaction.” Perkins v. Board of Trustees of the Univ. of Ill., 116 F.3d 235, 236" }, { "docid": "16135608", "title": "", "text": "bears on this case) prisons that receive federal funding to burden a prisoner’s exercise of religion substantially unless the prison both has a compelling interest and employs the least restrictive means possible for protecting that interest. 42 U.S.C. § 2000cc-1. Charles v. Verhagen, 348 F.3d 601, 610 (7th Cir.2003), and Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002), hold that 42 U.S.C. § 2000cc-1 is a valid exercise of Congress’s power under the Spending Clause, U.S. Const. art. I, § 8, cl. 1, although Cutter v. Wilkinson, 349 F.3d 257, 268-69 (6th Cir.2003), holds that section 2000cc-1 violates the First Amendment’s establishment of religion clause. The Wisconsin prison system receives federal funding, Charles v. Verhagen, supra, at 606, so to state a claim under RLUIPA a Wisconsin prisoner need allege only that the prison has substantially burdened a religious belief, which Lindell has done. We are given no reason to think that the fact that Wotanism is not a mainstream religion is disqualifying, see Thomas v. Review Board, 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir.1986); International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir.1981); Rust v. Clarke, 851 F.Supp. 377, 378 (D.Neb.1994) (Asatru/Odinism), though that is another issue we need not decide; and while the Wisconsin prison authorities may be able to demonstrate a compelling interest in suppressing it if indeed it is racist, Ochs v. Thalacker, 90 F.3d 293, 296-97 (8th Cir.1996); cf. Sasnett v. Sullivan, 91 F.3d 1018, 1023 (7th Cir.1996); Harris v. Chapman, 97 F.3d 499, 504 (11th Cir.1996); Stefanow v. McFadden, 103 F.3d 1466, 1472-74 (9th Cir.1996); Marria v. Broaddus, 2003 WL 21782633, *14-18 (S.D.N.Y. July 31, 2003), they have made no attempt to do this, the case having been dismissed without any submission by the defendants. Cf. Hutchinson v. Spink, supra, 126 F.3d at 899-900. We sympathize with the frustration of the able and busy district judge faced by Lindell’s repeated complaints stuffed with material that is irrelevant and difficult even to understand. But the Federal Rules" }, { "docid": "4348406", "title": "", "text": "untimely. Plaintiff appealed the rejection, arguing that the fourteen-day limitation period should not apply to his claim because it was based on an on-going violation. On June 8, 2004, defendant Peter Huibregtse affirmed defendant Ellen Ray’s rejection of WSPF-2004-17288. On June 4, 2004, plaintiff filed another inmate complaint, WSPF-2004-18240, in which he questioned why Muslims were permitted to have copies of the Koran even though that text does not conform with Internal Management Procedure # 6, Wis. Admin. Code § DOC 309.04(4) or Wis. Admin. Code § DOC 309.05(2)(b). In plaintiffs view, if Internal Management Procedure # 6 were implemented fully, neither the Bible nor the Koran would be permitted because both advocate hatred and violence. On June 9, 2004, defendant Ellen Ray recommended dismissal of plaintiffs claim, noting that “Muslim is one of the religions that is recognized by the [Department of Corrections]. As such, their book is allowed.” Defendant Peter Huibregtse adopted defendant Ellen Ray’s recommendation on June 24, 2004. On June 29, 2004, plaintiff appealed the dismissal. On July 9, 2004, defendant Hautumaki recommended dismissal and defendant Raemisch adopted this recommendation on July 15, 2004. E. Conspiracy and Retaliation Defendants Raemisch, Ellen Ray, Peter Huibregtse and John Ray conspired for the purpose of insuring that plaintiffs complaints about limitations on his ability to exercise his religion would be denied or rejected. In furtherance of this objective, each recommended the dismissal or rejection of plaintiffs inmate complaints, WSPF-2004-3117, WSPF-2004, 11310, WSPF-2004-11312, WSPF-2004-12351, WSPF-2004-13666, WSPF-2004-14393 and WSPF-2004-17288. Plaintiff cannot exercise Odinism because of this conspiracy. On May 28, 2004, plaintiff sent a letter regarding the blanket ban on the texts “Tower of Wotan,” “Creed of Iron” and “The NPKA Book of Blotar” to defendants Franks, Casperson, Berge, Boughton, Ov-erbo, Brown and Judith Huibregtse. In this letter, plaintiff indicated that without these books, he was unable to practice his religion. On May 29, 2004, plaintiff sent a second letter to defendants Franks, Cas-person and Berge, informing them that the department’s Internal Management Procedure # 6 is unconstitutionally overbroad. On May 30, 2004, plaintiff wrote defendants Franks, Casperson and Berge, asking" }, { "docid": "4348422", "title": "", "text": "RLUIPA claims in his earlier case. Although I will allow plaintiff to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo at this point, defendants are free to raise claim preclusion as an affirmative defense. c. “Azure Green” Plaintiff alleges that he was not allowed to have a copy of “Azure Green,” a catalogue in which items related to Wic-canism, Satanism and Odinism are sold. In contrast to his claims based on the ban on “The NPKA Book of Blotar,” “Temple of Wotan” and “Creed of Iron,” plaintiff does not allege or suggest that he either uses or needs a copy of the “Azure Green” catalogue in order to practice his religion. Because there is no suggestion that the ban on this catalogue affected plaintiffs rights under the free exercise clause, he will not be allowed to proceed on this claim. 2. Religious Land Use and Institutionalized Persons Act The Religious Land Use and Institutionalized Persons Act affords prisoners engaged in religious conduct federal statutory protections above and beyond those embodied in the First Amendment. Charles v. Verhagen, 220 F.Supp.2d 937, 943 (W.D.Wis.2002), aff’d, 348 F.3d 601 (7th Cir.2003) (upholding act’s constitutionality). The act prohibits governmental imposition of a “substantial burden on the religious exercise” of a prisoner, unless the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1. The rule applies in any case in which— (1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. It is to be construed broadly to favor the protection of inmates’ religious exercise. 42 U.S.C. § 2000cc-3(g). Although there is little case law interpreting the act’s key terms, its predecessor, the Religious Freedom Restoration Act, had an analogous requirement that plaintiffs demonstrate a “substantial burden” on their exercise of religion before defendants were called upon to show a compelling" }, { "docid": "23684447", "title": "", "text": "989, 995-96 (9th Cir.2005) (stating that a substantial burden exists where the government conduct \"impose[s] a significantly great restriction or onus upon [religious] exercise,” or where the government conduct puts \"substantial pressure on an adherent to modify his behavior and to violate his beliefs”) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) and Thomas). The standards from the Seventh and Eleventh Circuits appear to be at opposite ends of the definitional spectrum. . But see Murphy v. Missouri Dept. of Corrs., 372 F.3d 979, 988 (8th Cir.2004) (still requiring the government policy/action to substantially burden a \"central tenet” of the individual’s religious beliefs, even though RLUIPA explicitly protects religious exercise that includes activities not necessarily central to a system of religious belief). . We believe that the Fifth Circuit in Adkins enunciated the proper standard for what constitutes a substantial burden under RLUIPA. The Adkins definition incorporates the holdings of both Sherbert and Thomas, while also requiring that the burden on religious exercise actually be substantial. 393 F.3d at 570. . The full definition of substantial burden used by the District Court, which quoted from Weir v. Nix, 114 F.3d 817, 820 (8th Cir.1997), stated that “A substantial burden is: governmental action that must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person’s individual religious beliefs; must meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a person rea sonable opportunities to engage in those activities that are fundamental to a person’s religion.” It is unclear which prong the District Court used to decide the case. . But, as noted, this point is disputed and may have been waived. See supra note 3. . If the books themselves preached violence that undermined safety and security within the prison, then this would be a different case. See Borzych v. Frank, 439 F.3d 388 (7th Cir.2006) (purportedly religious texts advocated white-supremacist violence)." }, { "docid": "4348424", "title": "", "text": "interest furthered by the least restrictive means available. In Mack v. O’Leary, 80 F.3d 1175 (7th Cir.1996), judgment vacated and remanded by O’Leary v. Mack, 522 U.S. 801, 118 S.Ct. 36, 139 L.Ed.2d 5 (1997), the Court of Appeals for the Seventh Circuit elaborated on what the Religious Freedom Restoration Act meant by “substantially burdening” a person’s exercise of religion. Although the court of appeals’ decision in that case was vacated after the Supreme Court invalidated the RFRA as it applied to the states in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the court of appeals’ reasoning in Mack is instructive nonetheless. Charles, 348 F.3d at 606 (in enacting RFRA and RLUIPA, Congress intended to protect inmates from substantial burdens in practicing their religions). In Mack, the court of appeals held that a substantial burden on the free exercise of religion ... is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs. 80 F.3d at 1179; but see Henderson v. Kennedy, 253 F.3d 12, 17 (D.C.Cir.2001) (rejecting this definition of “substantial burden” as “read[ing] out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement”) (emphasis added). I understand plaintiff to allege that he is unable to attain his religious goal of achieving “godhead” unless he is allowed to possess “Temple of Wotan,” “Creed of Iron” or “The NPKA Book of Blotar.” An act that prevents an inmate from achieving his ultimate religious goal meets the “substantial burden” test set forth in Mack, 80 F.3d at 1179; Lindell v. McCollum, 352 F.3d 1107, 1109-10 (7th Cir.2003) (denial of Odinist literature states claim under RLUIPA). Plaintiff will be allowed to proceed against defendants Frank, Raemisch, Casperson, Boat-wright, Berge, Peter Huibregtse, Judith Huibregtse, Overbo, Boughton and Brown on his claim that they violated RLUIPA by prohibiting him from having a copy of “The NPKA Book" }, { "docid": "4348425", "title": "", "text": "of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs. 80 F.3d at 1179; but see Henderson v. Kennedy, 253 F.3d 12, 17 (D.C.Cir.2001) (rejecting this definition of “substantial burden” as “read[ing] out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement”) (emphasis added). I understand plaintiff to allege that he is unable to attain his religious goal of achieving “godhead” unless he is allowed to possess “Temple of Wotan,” “Creed of Iron” or “The NPKA Book of Blotar.” An act that prevents an inmate from achieving his ultimate religious goal meets the “substantial burden” test set forth in Mack, 80 F.3d at 1179; Lindell v. McCollum, 352 F.3d 1107, 1109-10 (7th Cir.2003) (denial of Odinist literature states claim under RLUIPA). Plaintiff will be allowed to proceed against defendants Frank, Raemisch, Casperson, Boat-wright, Berge, Peter Huibregtse, Judith Huibregtse, Overbo, Boughton and Brown on his claim that they violated RLUIPA by prohibiting him from having a copy of “The NPKA Book of Blotar.” Plaintiff will not be allowed to proceed against defendants Frank or Casperson for the denial of “Temple of Wotan” or “Creed of Iron”; these claims are barred under the doctrine of claim preclusion. Borzych, 03-C-0575-C. However, he will be allowed to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo because it is not clear that these defendants were in privity with any parties in plaintiffs earlier complaint. Finally, plaintiff will not be allowed to proceed on his claim that he was denied a copy of “Azure Green” because there is no indication that this deprivation substantially burdened his ability to practice Odinism. 3. Establishment clause The establishment clause of the First Amendment is violated when “the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592, 109 S.Ct. 3086,106 L.Ed.2d 472 (1989) (citations omitted). The fact that government may not “endorse” religion means that it is precluded “from conveying or attempting to convey a message" }, { "docid": "4348426", "title": "", "text": "of Blotar.” Plaintiff will not be allowed to proceed against defendants Frank or Casperson for the denial of “Temple of Wotan” or “Creed of Iron”; these claims are barred under the doctrine of claim preclusion. Borzych, 03-C-0575-C. However, he will be allowed to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo because it is not clear that these defendants were in privity with any parties in plaintiffs earlier complaint. Finally, plaintiff will not be allowed to proceed on his claim that he was denied a copy of “Azure Green” because there is no indication that this deprivation substantially burdened his ability to practice Odinism. 3. Establishment clause The establishment clause of the First Amendment is violated when “the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592, 109 S.Ct. 3086,106 L.Ed.2d 472 (1989) (citations omitted). The fact that government may not “endorse” religion means that it is precluded “from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Id. at 593, 109 S.Ct. 3086 (citations omitted); Wallace v. Jaffree, 472 U.S. 38, 52-53, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Supreme Court “has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all”). Plaintiff contends that defendants violated the establishment clause by permitting inmates to have copies of the Bible or Koran but not Odinist texts. Plaintiffs claim may be barred under the doctrine of claim preclusion. In Borzych, 03-C-0575-C, I allowed plaintiff to proceed against defendants Frank and Casperson on his claim that a segregation handbook violated the establishment clause because it allowed inmates in segregation to have copies of the Bible or Koran but not Odinist literature. In this case, plaintiffs complaint is more vague; it is not clear whether he is complaining about the segregation policy again or whether he is challenging some other prison practice or policy under which Muslim and Christian texts" }, { "docid": "4348439", "title": "", "text": "from pursuing it against them again. However, I will allow plaintiff to proceed against defendants Raemisch, Boatwright, Berge, Peter Huibregtse, Judith Huibregtse, Overbo, Boughton and Brown because they were not named in plaintiffs earlier suit and it is not clear they are in privity with any party to that case. Because these claims arise from the same facts governing plaintiffs federal claims, supplemental jurisdiction exists. 28 U.S.C. § 1367(a). H. Failure to Respond Plaintiff alleges that defendants Boughton and Overbo failed to respond to his informal correspondence regarding the ban on Odinist literature. Plaintiff will be denied leave to proceed on this claim; he has no constitutional, federal or state right to receive a response to his informal communications to the facility security director or chaplain. I. Defendant Sebastian As noted above, a government official must be personally involved with the alleged violation in order to be subject to liability under § 1983. Gentry, 65 F.3d at 561; Del Raine, 32 F.3d at 1047; Morales, 825 F.2d at 1101; Wolf-Lillie, 699 F.2d at 869. Plaintiff has failed to allege any facts showing that defendant Sebastian had any involvement with any of the alleged violations. Accordingly, she will be dismissed from this action. ORDER IT IS ORDERED that: 1. Plaintiff Gary Borzych is GRANTED leave to proceed on his claims that (a) Defendants Matthew Frank, Steve Casperson, Ana Boatwright, Gerald Berge, Gary Boughton, Peter Huibregtse, Judith Huibregtse, Richard Raemisch, Lebbeus Brown and Todd Overbo violated his First Amendment right to free exercise by depriving him of a copy of “The NPKA Book of Blotar”; (b) Defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated plaintiffs First Amendment right to free exercise by depriving him of copies of “Tower of Wotan” and “Creed of Iron”; (c) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Judith Huibregtse, Brown, Raem-isch and Overbo violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000ce-1, by depriving him of his copies of “The NPKA Book of Blotar”; (d) Defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated Religious Land Use" }, { "docid": "23212241", "title": "", "text": "should, or need, be read as subjecting the decisions of prison officials to a strict 'least restrictive means' test.” Abbott, 490 U.S. at 411, 109 S.Ct. 1874. The Court overruled Martinez as far as it suggested a legal distinction between incoming correspondence from prisoners and incoming correspondence from nonprisoners. Id. at 413-14, 109 S.Ct. 1874. . This case would present different issues had the District Court not assumed that the Five Percent Nation was a religion. The Court would have been required to determine whether FPN would be considered a religion, and therefore accorded the protections provided by the Free Exercise Clause of the First Amendment. As this issue is not before us, and was not before the District Court, we need not decide whether the FPN would satisfy these requirements, but only stress that non-traditional belief systems found to be religious in nature will be afforded the same protections as traditional ones. See Africa v. Pennsylvania, 662 F.2d 1025, 1031-32 (3d Cir.1981) (setting forth three indicia to be used in determining whether a ''religion'' is at issue). . While the FPN tenets may be racial in tone, racism is not the same as violence. See McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (\"[Pjrison authorities have no legitimate penological interest in excluding religious books from the prison library merely because they contain racist views. Courts have repeatedly held that prisons may not ban all religious literature that reflects racism.”); Stefanow v. McPadden, 103 F.3d 1466, 1472-73 (9th Cir.1996) (applying Turner and observing that \"[mjerely 'advocating racial purity’ is insufficient to justify confisca-ti[ng]” religious material, and upholding the confiscation of the book Christianities Ancient Enemy because it directly advocates violence by issuing an explicit \"call to arms for white Christians to fight back in 'a war for survival’ ”); Murphy v. Missouri Dep’t of Corrs., 814 F.2d 1252, 1257 (8th Cir.1987) (holding that restriction of inmate access to racist religious materials \"must be limited to those materials that advocate violence or that are so racially inflammatory as to be reasonably likely to cause violence at the prison”); Aikens v." }, { "docid": "4348428", "title": "", "text": "are permitted but Odinist books are prohibited. (This is, of course, assuming that Odinism is a religion. For purposes of determining whether plaintiff has stated a claim, I will assume this to be the case. See, e.g., Lindell v. MeCallum, 352 F.3d 1107, 1110 (7th Cir.2003) (“We are given no reason to think that the fact that Wotanism is not a mainstream religion is disqualifying, though that is another issue we need not decide.”) (citations omitted).) Because it is not clear at this early stage whether plaintiffs claim is identical to the one he raised in Borzych, 03-C-578-C, I will allow him to proceed against defendants Frank and Casperson. In addition, I will allow plaintiff to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo because each occupies a position in which he may have had some responsibility over the challenged religious policy. Again, defendants are free to raise claim preclusion as an affirmative defense. C. Free Speech 1. Retaliation Prison officials may not retaliate against inmates for the exercise of a constitutional right, Babcock v. White, 102 F.3d 267, 275 (7th Cir.1996), and complaints about prison conditions may be protected by the First Amendment. Walker v. Thompson, 288 F.3d 1005 (7th Cir.2002). To raise a claim of retaliation, it is insufficient for an inmate simply to allege the ultimate fact of retaliation, Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002), but he need not allege a chronology of events from which retaliation may be inferred. Walker, 288 F.3d at 1009. Rather, he need only identify the act of retaliation and the grievance that sparked the retaliatory act. Higgs, 286 F.3d at 439. In alleging that defendants Judith Huibregtse and Boatwright retaliated against him for complaining about the ban on Odinist texts in a letter he sent to defendants Franks, Casperson, Berge, Boughton, Overbo, Brown and Judith Hui-bregtse dated May 28, 2004, by destroying his copy of “The NPKA Book of Blotar,” plaintiff has identified the act of retaliation and the grievance that triggered the retaliation. Accordingly, he will be allowed to proceed on this claim" }, { "docid": "4348441", "title": "", "text": "and Institutionalized Persons Act by depriving plaintiff of copies of “Tower of Wotan” and “Creed of Iron”; (e) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated the establishment clause by allowing inmates to have copies of the Koran or the Bible but not Odinist literature; (f) Defendants Judith Huibregtse and Boatwright retaliated against plaintiff for sending a letter to defendants Franks, Casperson, Berge, Boughton, Overbo, Brown and Judith Huibregtse, complaining of the ban on Odinist texts by destroying his copy of “The NPKA. Book of Blotar”; (g) defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Raemisch, Hautumaki, Judith Huibregtse, Brown and Overbo violated plaintiffs First Amendment right to free speech by prohibiting him from possessing Odinist texts; (h) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Raemisch, Judith Huibregtse, Brown and Overbo violated the equal protection clause when they allowed Christians and Muslims to have copies of book central to their religion but did not allow plaintiff to have copies of Odinist texts; (i) Defendants Raemisch, Boatwright, Berge, Peter Huibregtse, Judith Hui-bregtse, Overbo, Boughton and Brown violated Wis. Stat. §§ DOC 309.61(l)(a) and (b)by not allowing plaintiff to possess Odinist literature. 2.Plaintiff is DENIED leave to proceed on his claims that (a) Defendants violated his First Amendment right to free exercise and the Religious Land Use and Institutionalized Persons Act by prohibiting him from having a copy of the catalogue “Azure Green”; (b) Defendants Raemisch, Ellen Ray, Peter Huibregtse and John Ray conspired to prevent plaintiff from being able to practice Odinism; (c) Defendants violated the due process clause by destroying his copy of “The NPKA Book of Blotar”; (d) Defendants Judith Huibregtse, Ov-erbo, Boughton and Brown subjected plaintiff to libel by indicating that the author of “The NPKA Book of Blotar” is a member of a disruptive group; (e) Defendants Boughton and Overbo failed to respond to plaintiffs letters regarding the ban on Odinist literature. 3. Defendants Vicki Sebastian, John Ray, Hautumaki, Trumm, and Ellen Ray are DISMISSED; plaintiff has failed to state a claim against defendant Hautumaki and defendants' John Ray, Hautumaki, Trumm," }, { "docid": "4348421", "title": "", "text": "“Creed of Iron.” All three elements of claim preclusion are satisfied: plaintiff raises the same claim against the same parties as he did in a previous suit, which was dismissed with prejudice. In this case, however, plaintiff has added new defendants who were not parties in his earlier case: defendants Boatwright, Berge, Boughton, Brown, Peter Hui-bregtse, Raemisch and Overbo, each of whom may be involved in the promulgation of religious policies. Although these defendants were not named parties in plaintiffs earlier action, the doctrine of claim preclusion extends to those in privity with parties. Privity is a concept often noted for its elusive nature. It is typically found when the interests of a previously named party are closely aligned with those of the party invoking the doctrine. People Who Care v. Rockford Bd. of Education, 68 F.3d 172, 177 (7th Cir.1995). It is not clear from the face of plaintiffs complaint whether these three defendants were in privity with any of the defendants against whom plaintiff was allowed to proceed on his free exercise and RLUIPA claims in his earlier case. Although I will allow plaintiff to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo at this point, defendants are free to raise claim preclusion as an affirmative defense. c. “Azure Green” Plaintiff alleges that he was not allowed to have a copy of “Azure Green,” a catalogue in which items related to Wic-canism, Satanism and Odinism are sold. In contrast to his claims based on the ban on “The NPKA Book of Blotar,” “Temple of Wotan” and “Creed of Iron,” plaintiff does not allege or suggest that he either uses or needs a copy of the “Azure Green” catalogue in order to practice his religion. Because there is no suggestion that the ban on this catalogue affected plaintiffs rights under the free exercise clause, he will not be allowed to proceed on this claim. 2. Religious Land Use and Institutionalized Persons Act The Religious Land Use and Institutionalized Persons Act affords prisoners engaged in religious conduct federal statutory protections above and beyond those embodied in" }, { "docid": "4348407", "title": "", "text": "Hautumaki recommended dismissal and defendant Raemisch adopted this recommendation on July 15, 2004. E. Conspiracy and Retaliation Defendants Raemisch, Ellen Ray, Peter Huibregtse and John Ray conspired for the purpose of insuring that plaintiffs complaints about limitations on his ability to exercise his religion would be denied or rejected. In furtherance of this objective, each recommended the dismissal or rejection of plaintiffs inmate complaints, WSPF-2004-3117, WSPF-2004, 11310, WSPF-2004-11312, WSPF-2004-12351, WSPF-2004-13666, WSPF-2004-14393 and WSPF-2004-17288. Plaintiff cannot exercise Odinism because of this conspiracy. On May 28, 2004, plaintiff sent a letter regarding the blanket ban on the texts “Tower of Wotan,” “Creed of Iron” and “The NPKA Book of Blotar” to defendants Franks, Casperson, Berge, Boughton, Ov-erbo, Brown and Judith Huibregtse. In this letter, plaintiff indicated that without these books, he was unable to practice his religion. On May 29, 2004, plaintiff sent a second letter to defendants Franks, Cas-person and Berge, informing them that the department’s Internal Management Procedure # 6 is unconstitutionally overbroad. On May 30, 2004, plaintiff wrote defendants Franks, Casperson and Berge, asking them to permit him to have copies of these three Odinist texts. Plaintiff again indicated that he had no other means of practicing Odinism. Defendant Boat-wright responded to these three letters but refused to address the substance of plaintiffs complaints. On June 29, 2004, defendant Judith Hui-bregtse destroyed plaintiffs copy of “The NPKA Book of Blotar” in retaliation for a letter he sent her on May 28, 2004, complaining about the ban on Odinist texts. Defendant Boatwright encouraged defendant Judith Huibregtse to destroy plaintiffs text. OPINION A. Inmate Complaint Examiners Before turning to the substance of plaintiffs complaint, I will address the potential liability of inmate complaint reviewers and examiners. Plaintiff has named as defendants all of the complaint examiners who reviewed his complaints. It is well established that liability under § 1983 must be based on a defendant’s personal involvement in the constitutional violation. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995); Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir.1994); Morales v. Cadena, 825 F.2d 1095, 1101 (7th Cir. 1987);" }, { "docid": "23684410", "title": "", "text": "OPINION OF THE COURT SMITH, Circuit Judge. This case requires us to define “substantial burden” under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq, to determine whether the Pennsylvania Department of Corrections’ (DOC’s) restriction on inmates that they possess in their cells only ten books at a time substantially burdens inmate Henry Unseld Washington’s religious exercise. We hold that it does. Because the DOC is unable to show that its ten-book policy is the least restrictive means to further its compelling governmental interest in the safety and health of prisoners and prison employees, we will reverse the District Court’s order dismissing Washington’s RLUIPA claim and remand with instructions to consider whether any factual issues remain when that claim is evaluated under the proper legal standard. I. Henry Unseld Washington is an inmate in the custody of the Pennsylvania DOC who has attempted to practice his religion while incarcerated. Washington founded and has been a practitioner of the Children of the Sun Church for over two decades. According to Washington, the Children of the Sun Church supports the development of “Pan-Afrikanism” whereby adherents to the religion stress that “only through Pan-Afrikanism can Afrikan people worldwide, be able to change the conditions of Afrikan people in the diaspora and the motherland.” To this end, Washington’s Church states that “[f]or every Afrikan’s eyes you open with his teachings you will gain rewards in the life everafter.” One of the rituals requires a practitioner to read four different Afro-centric books per day. This ritual is aimed at educating the adherent to doctrine, so that he is able to teach others more effectively. Washington views this ritual as necessary to his Church’s proselytization requirement, so that the books “are in essence the religion itself.” The Pennsylvania DOC limits the amount of property any inmate may store in his cell. The DOC’s policy states that “limitations on the amount and variety of inmate property may be imposed for security, hygiene and/or safety reasons.” With respect to publications, each inmate is permitted to retain three newspapers, ten magazines," }, { "docid": "4348399", "title": "", "text": "and Sandra Hautumaki are corrections complaint examiners. Defendant Gerald Berge is the warden at the Secure Program Facility and defendant Peter Huibregtse is the deputy warden. Other defendants employed at the facility include defendant Gary Boughton, who is the security director, defendant Judith Huibregtse, the mail room sergeant, de fendant Lebbeus Brown, the gang coordinator, defendant Vicki Sebastian, the program director, defendant Todd Overbo, the chaplain and defendants Kelly Trumm and Ellen Ray, both of whom are inmate complaint examiners. Plaintiffs religion is Odinism, which is also known as Asatry or Wotanism. Odin-ists do not worship a god but instead attempt to achieve “godhead.” Plaintiff does not advocate racism, promote hate crimes or violence and does not attack others on the basis of their religion or ethnicity. Although he knows how to brew hooch and mead, he has never made any while incarcerated. There are several major Odinist holidays, observation of which is essential for attaining godhead. It is also essential for true Odinists to perform nightly rites. Since March 16, 2003, plaintiff has not been able to perform these nightly rites or observe the holidays. A. Denial of Odinist Texts Not all texts proclaiming to be Odinist reflect the true beliefs of the religion. However, “Temple of Wotan,” “Creed of Iron” and “The NPKA Book of Blotar” were written by true Odinists and plaintiff is unable to practice his religion without them. On May 29, 2003, plaintiff was told that he had to send his copies of “Temple of Wotan” and “Creed of Iron” out of the facility or they would be destroyed. On March 31, 2004, someone outside the prison sent plaintiff a copy of “The NPKA Book of Blotar” but defendants Judith Huibregtse, Overbo, Boughton and Brown prohibited plaintiff from having it because its author is allegedly a member of a disruptive group. On April 4, 2004, plaintiff filed an inmate complaint, WSPF-2004-11312, alleging that he had been subject to libel when his book was rejected because of its potential disruptive content. Plaintiff complained that such a rejection implied that he advocates disruption. On April 12, 2004," }, { "docid": "23511210", "title": "", "text": "that Turners neutrality requirement allows a prison policy to draw distinctions so long as those distinctions flow from the government’s legitimate penological interest); see also Hammer v. Ashcroft, 512 F.3d 961, 968-69 (7th Cir.2008) (holding that issue of material fact as to neutrality in application of prison regulation required reversal of district court’s grant of summary judgment); Dingle v. Zon, 189 Fed.Appx. 8, 10 (2d. Cir.2006) (unpublished) (reversing summary judgment because issue of facts existed as to neutrality in prison’s application of religious volunteer policy). Turner's second element requires consideration of the alternative means of worship available in spite of the prison regulation. “The pertinent question is not whether the inmates have been denied specific religious accommodations, but whether, more broadly, the prison affords the inmates opportunities to exercise their faith.” Freeman, 369 F.3d at 861. In other words, we ask “whether the regulation entirely stifles the prisoner’s religious expression.” Scott, 961 F.2d at 81. The TDCJ notes that Mayfield may gather for group worship when an outside volunteer is present, and may worship individually in his cell with items approved for personal possession. The TDCJ’s policy also allows Mayfield the opportunity to meet individually with an approved spiritual advisor twice monthly. The TDCJ submitted evidence that Mayfield has access to Odinist religious materials in the unit’s spiritual library. Klaus Adams, the Hughes Unit chaplain, averred that he banned a single book related to Odinism, but that many Odinist prisoners use the spiritual library. Mayfield responds that personal worship in his cell is made impossible because the TDCJ does not provide any of the necessary items for Odinist religious practice, and that Odinism is, by its nature, a religion of communal worship. Mayfield also submits evidence showing that the Hughes Unit refused to approve a number of books on Odinism, specifically books related to runes. While the record presents minor unresolved issues of fact regarding alternative means available to Mayfield, these issues of fact are not material and the record sufficiently establishes that May-field has access to alternative means of worship. As to Taylor’s third prong, we recognize the heavy" }, { "docid": "4348427", "title": "", "text": "that religion or a particular religious belief is favored or preferred.” Id. at 593, 109 S.Ct. 3086 (citations omitted); Wallace v. Jaffree, 472 U.S. 38, 52-53, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Supreme Court “has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all”). Plaintiff contends that defendants violated the establishment clause by permitting inmates to have copies of the Bible or Koran but not Odinist texts. Plaintiffs claim may be barred under the doctrine of claim preclusion. In Borzych, 03-C-0575-C, I allowed plaintiff to proceed against defendants Frank and Casperson on his claim that a segregation handbook violated the establishment clause because it allowed inmates in segregation to have copies of the Bible or Koran but not Odinist literature. In this case, plaintiffs complaint is more vague; it is not clear whether he is complaining about the segregation policy again or whether he is challenging some other prison practice or policy under which Muslim and Christian texts are permitted but Odinist books are prohibited. (This is, of course, assuming that Odinism is a religion. For purposes of determining whether plaintiff has stated a claim, I will assume this to be the case. See, e.g., Lindell v. MeCallum, 352 F.3d 1107, 1110 (7th Cir.2003) (“We are given no reason to think that the fact that Wotanism is not a mainstream religion is disqualifying, though that is another issue we need not decide.”) (citations omitted).) Because it is not clear at this early stage whether plaintiffs claim is identical to the one he raised in Borzych, 03-C-578-C, I will allow him to proceed against defendants Frank and Casperson. In addition, I will allow plaintiff to proceed against defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo because each occupies a position in which he may have had some responsibility over the challenged religious policy. Again, defendants are free to raise claim preclusion as an affirmative defense. C. Free Speech 1. Retaliation Prison officials may not retaliate against inmates for the exercise of a" }, { "docid": "4348440", "title": "", "text": "has failed to allege any facts showing that defendant Sebastian had any involvement with any of the alleged violations. Accordingly, she will be dismissed from this action. ORDER IT IS ORDERED that: 1. Plaintiff Gary Borzych is GRANTED leave to proceed on his claims that (a) Defendants Matthew Frank, Steve Casperson, Ana Boatwright, Gerald Berge, Gary Boughton, Peter Huibregtse, Judith Huibregtse, Richard Raemisch, Lebbeus Brown and Todd Overbo violated his First Amendment right to free exercise by depriving him of a copy of “The NPKA Book of Blotar”; (b) Defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated plaintiffs First Amendment right to free exercise by depriving him of copies of “Tower of Wotan” and “Creed of Iron”; (c) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Judith Huibregtse, Brown, Raem-isch and Overbo violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000ce-1, by depriving him of his copies of “The NPKA Book of Blotar”; (d) Defendants Boatwright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated Religious Land Use and Institutionalized Persons Act by depriving plaintiff of copies of “Tower of Wotan” and “Creed of Iron”; (e) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Brown, Peter Huibregtse, Raemisch and Overbo violated the establishment clause by allowing inmates to have copies of the Koran or the Bible but not Odinist literature; (f) Defendants Judith Huibregtse and Boatwright retaliated against plaintiff for sending a letter to defendants Franks, Casperson, Berge, Boughton, Overbo, Brown and Judith Huibregtse, complaining of the ban on Odinist texts by destroying his copy of “The NPKA. Book of Blotar”; (g) defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Raemisch, Hautumaki, Judith Huibregtse, Brown and Overbo violated plaintiffs First Amendment right to free speech by prohibiting him from possessing Odinist texts; (h) Defendants Frank, Casperson, Boat-wright, Berge, Boughton, Peter Hui-bregtse, Raemisch, Judith Huibregtse, Brown and Overbo violated the equal protection clause when they allowed Christians and Muslims to have copies of book central to their religion but did not allow plaintiff to have copies of Odinist texts; (i) Defendants Raemisch, Boatwright, Berge, Peter Huibregtse," } ]

[ { "docid": "16323516", "title": "", "text": "Beckworth, Judge: This is an application to review the decision and judgment of a single judge sitting in reappraisement which was reported as Peacock Sales Co., Inc. v. United States, 58 Cust. Ct. 757, R. D. 11321. The merchandise consists of cigarette lighters in different styles which were shipped from the Virgin Islands and entered at the port of San Juan, Puerto Rico, on December 26, 1957, and January 7, 1958. The lighters had been assembled in the Virgin Islands by V. I. Jewelry Manufacturing Corporation of St. Thomas, Virgin Islands, from parts which had previously been imported into the Virgin Islands from Japan, and were sold to Peacock Sales Co., Inc., the appellee herein. Pursuant to section 301 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1954, this merchandise is subject to a value determination as if imported from a foreign country. This section provides: There shall be levied, collected, and paid upon all articles coming into the United States from any of its insular possessions, except Puerto Rico, the rates of duty which are required to be levied, collected, and paid upon like articles imported from foreign countries; except that all articles the growth or product of any such possession, or manufactured or produced in any such possession from materials the growth, product, or manufacture of any such possession or of the United States, or of both, which do not contain foreign materials to the value of more than 50 per centum of their total value, coming into the United States directly from any such possession, * * * shall be admitted free of duty upon compliance with such regulations as to proof of origin as may be prescribed by the Secretary of the Treasury. * * * In order to obtain the benefit of free entry under said section 301, appellee claims that the dutiable values are the higher entered values rather than the lower appraised values of this merchandise. Said values are as follows: The merchandise was entered prior to the effective date of the Customs Simplification Act of 1956." } ]

[ { "docid": "23366995", "title": "", "text": "The facts of the case are not in dispute. The only evidence offered and received at the trial of the cause was plaintiff’s exhibit 1, a customs agent’s report on the very shipment of merchandise involved in this appeal. It is claimed by the Government that this-report shows that a foreign value (which is defined in section 402 (c) of the Tariff Act of 1930, as amended by section 8 of the Customs-Administrative Act of 1938) existed for the merchandise; that the sales to the importer were “accommodation sales” caused by the existence of unusual conditions prevailing in the plant of the Bake-lite Corporation, an American subsidiary of the exporter; that the- shipper did not sell its products for export to the United States in the ordinary course of trade, and that export value (which is defined in section 402 (d) of the Tariff Act of 1930) was thus removed from consideration; that the merchandise was offered for sale in Canada for home consumption in the usual wholesale quantities at the prices listed in the report, exhibit 1. It is further claimed that the report would establish the usual wholesale quantities and prices at which offered; that the report would establish 45 cents per pound, plus the cost of drums, to be the correct dutiable foreign value of the merchandise herein. No other evidence was offered by the plaintiff than the customs agent’s report, exhibit 1. However, the plaintiff’s attorney in his brief calls to the court’s attention an amended customs laboratory report, dated December 5, 1946, which it is claimed “is part of the official papers herein” and “established that the merchandise was properly dutiable under the provisions of paragraph 75 of the Tariff Act of 1930, as a spirit varnish, and not as a coal tar product dutiable under paragraph 28.” Government counsel points out that the defendant offered no evidence and claims that the “amended chemist’s report, part of the official file, and Exhibit 1 contain sufficient facts to overcome the presumption of correctness attaching to the appraised value, and also to establish another correct dutiable value" }, { "docid": "4648358", "title": "", "text": "production or constructed value. Defendant contends that the affidavit, exhibit 2, is entitled to no weight and is insufficient to establish prima facie that the claimed values fairly reflect market values, citing Descoware Corp. (Westland) v. United States, 58 Cust. Ct. 698, R.D. 11297 (1967). That case involved cost of prodtiction as defined in section 402a(f), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, and the evidence did not disclose that the exporter's hooks and records xoere kept hy or under the supervision of an affiant. The above statute does not provide for evidence as to whether sales fairly reflect market value. The Descoware case is not controlling in the instant case. The facts adduced in the case at bar, with respect to plaintiff’s primary contention, warrant the conclusion that plaintiff has established the elements of proof of an export value as defined in section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, supra. The plaintiff therefore, “established its case” (defendant’s brief, page 20). Accordingly, it is not deemed necessary to pass upon the alternate claim of plaintiff concerning the question of constructed value, although all of the evidence 'has been reviewed. On the entire record herein, the court FiNds as Facts 1. The imported merchandise which consists of ladies wigs, turban wigs, turbans for turban-wigs, ponytails and wiglets was manufactured and exported by Brentwood Wig Manufactory, Ltd. of Kowloon, Hong Kong. The exportations in the involved ten entries were made between June 9,1964 and July 11,1964, both dates inclusive. 2. The merchandise does not appear on the final list published by the Secretary of the Treasury in 93 Treas. Dec. 14, T.D. 54521. 3. The merchandise was appraised on the basis of constructed value which is defined in section 402 (d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. 4. The plaintiff claims that the export value which is defined in" }, { "docid": "18819040", "title": "", "text": "were made at the lower prices claimed by the importer, such values cannot form the basis for dutiable value. The tariff act (section 402 (d)), supra, however, does not require a value at which merchandise is sold, to establish export value. It specifically states that such value shall be the price at which such or similar merchandise “is jreely offered jor sale” to all purchasers, and the court has held that offers for sale that meet the other requirements of the statute are sufficient to determine dutiable value. We quote from the decision of our appellate court in the case of Oceanic Trading Co. v. United States (21 C. C. P. A. 146, T. D. 46478): If so, it is sufficient to say that neither foreign nor export value, as defined by subdivisions (c) and (d), respectively, of section 402 of the Tariff Act of 1930, is limited to the market value or price at which such or similar merchandise is sold, but includes the price at which it is freely offered for sale. Accordingly, where it has been established that such or similar merchandise was freely offered for sale, as required by the statute, the absence of evidence of actual sales is not of vital consequence. United States v. Baldwin Universal Co. (18 C. C. P. A. (Customs) 394, T. D. 44641, and cases cited therein). On the basis of the record before us, we concur in the conclusion of the lower court and hold that the proper dutiable values of the tides covered by reappraisements 131586-A and 131587-A to be tbe entered values, as claimed by the importer. Two sales in tbe Canadian market of bides like those tbe subject of reappraisement 133317-A form tbe basis of tbe export value claimed by tbe importer for that merchandise. The sales referred to were made on December 8, 1938, tbe date of exportation of the merchandise covered by tbe said reappraisement, and they were negotiated on behalf of tbe United States importer by tbe witnesses who testified on behalf of tbe plaintiff in the court below. It was their testimony" }, { "docid": "1997768", "title": "", "text": "Newman, Judge: This is an application by plaintiff below for review of a decision and judgment of a single judge in two consolidated appeals for reappraisement, wherein the appraised values were held to be the correct export values of certain wearing apparel. Park Avenue Imports v. United States, 60 Cust. Ct. 750, R.D. 11468, decided January 22,1968. Involved is the dutiable value of certain boys’ cotton trousers exported from Hong Kong and Kobe (Japan) in June and July 1963, respectively. The merchandise was entered at the invoiced unit f.o.b. prices and was appraised at those prices plus 3% percent, net, packed, which appellee contends represents the correct export values. However, appellant contends that the entered invoiced f.o.b. prices represent the correct dutiable values, and that the 3y2 percent additions by the appraiser represented bona fide buying commissions, which are not properly a part of export value. The parties agree that export value as defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, is the proper basis of value of the merchandise. At the trial, the parties agreed by written stipulation “that the 3y2% added by the appraiser to the entered values in each case herein represents the amount of an alleged buying commission as shown on the Cohen Sons Trading Co. invoices accompanying each entry, and that the issue herein is limited to whether or not said amount represents a liona fide buying commission.” The trial court held that plaintiff had failed to prove that the 3y2 percent additions were in fact bona fide buying commissions or that the transactions here involved were conducted in the ordinary course of trade in the principal markets in which the imported merchandise was purchased. With respect to the latter the trial judge held: “This constitutes a fatal failure of proof in the plaintiff’s case.” Appellant contends, as it did below, that the Sy2 percent additions represented bona fide buying commissions, not properly part of the export value of the merchandise; and that the trial judge erred in holding that the importer had failed" }, { "docid": "4782400", "title": "", "text": "NewmaN, Judge: This is an application for review by plaintiff below of a decision and judgment of Hon. David J. Wilson, the trial judge, covering 102 consolidated appeals for reappraisement in Luckytex, Ltd. v. United States, 60 Cust Ct. 826, R.D. 11511 (1968), holding that the appraised values were the proper dutiable export values of various items of cotton wearing apparel. The merchandise was exported by Asia Industrial Development Co., Ltd., Hong Kong during the period between December 1960 and October 1962, and was entered at the ports of Baltimore and New York. Entry was made by the importer in each appeal at the invoiced unit c.i.f. prices, less the included and separately stated total charges for .ocean freight and marine insurance premium. Appraisements are designated on the official papers in two ways: In most of the appeals, the appraised values are shown to be at the invoiced unit prices, net packed; and in the others the appraiser indicated specific unit values, net packed, which are equal to the invoiced c.i.f. prices. There is no indication in the official papers that the invoiced charges for ocean freight and insurance are included in the appraised values. Both parties agree that export value, as defined in section 402(b) of the Tariff Act of 1930, and as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, is the proper basis for appraisement. The parties also agree that this case is a retrial of Luckytex, Ltd. v. United States, 56 Cust. Ct. 575, R.D. 11119 (1965), wherein Chief Judge Nao sustained the appraised values of certain wearing apparel exported by Asia Industrial Development Co., Ltd., on October 11, 1961, which date is within the period of exportation involved herein. The record of the prior case was incorporated into the record of the present trial on appellant’s motion, without objection by appellee (R. 31). Appellant’s principal argument is that it has now made a prima facie case, establishing as the correct dutiable export values certain f.o.b. prices at which the merchandise was freely offered for sale to Luchytex and others," }, { "docid": "16323518", "title": "", "text": "It was appraised on the basis of cost of production, as that value is defined in section 402(f) of the Tariff Act of 1930 (redesignated section 402a(f) by the Customs Simplification Act of 1956), and the values claimed by appellee are based on foreign value, as that value is defined in section 402(c) of said tariff act, as amended by the Customs Administrative Act of 1938 (redesignated section 402a(c) by the Customs Simplification Act of 1956). It has been conceded that if cost of production is found to be the proper basis of appraisement, the appraised values represent the correct cost of production for the purpose of this case. The trial court held that foreign value was the proper basis of appraisement and that such values were the entered values per dozen, plus $0.0021 per dozen for packing costs. Foreign value is defined in section 402(c), as amended, as follows: (c) FoReigií Value. — The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, including the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses, incident to placing the merchandise in condition, packed ready for shipment to the United States. On application for review, the Government contends, as it did below, that the offers and sales made by Y. I. Jewelry Manufacturing Corporation (hereinafter called V. I. Jewelry) in the Virgin Islands were pure contrivances and not such offers and sales as are contemplated by the statute and that, therefore, no foreign value exists. It contends further that appellee has failed to adduce competent proof of all the costs of placing the merchandise in packed condition ready for exportation to the United States. A detailed analysis of the evidence in this case is included in the opinion of" }, { "docid": "12148348", "title": "", "text": "involved prior to arrival of the merchandise within the port. See 19 C.F.R. 8.59(c) (1971 edition). Thus, in view of the evidence of record that the instant merchandise was examined and released by customs inspectors under special permits for immediate delivery, the court must assume that the appropriate designation and examination of the merchandise for appraisement purposes was made in compliance with law, no evidence to the contrary having been introduced by the plaintiff. Secondly, even if full credence be given to the statements contained in exhibit 1, what the case comes down to, as plaintiff’s counsel aptly noted at the trial, is whether the HD-600 lighter is the same as the GL-160 lighter (R.147). And, on this phase of the case the evidence adduced by plaintiff does not address itself to this issue at all. Hence, it follows, therefore, that in the absence of evidence of dissimilarity between the imported lighters and those relied upon in the making of the appraisements herein, plaintiff has failed to prove that the value adopted by the appraising official in this case was not the proper export value. United States v. A. Orlikoff of Mexican Artcraft Co. et al., 25 Cust. Ct. 441, Reap. Dec. 7892 (1950). As such, plaintiff has failed to sustain the issuable allegations of the complaint, and the action must, therefore, be dismissed. Accordingly, on the record the court finds as facts: 1. That the merchandise in this action consists of disposable cigarette lighters designated as model HD-600 manufactured in and exported from Japan between February 11 and April 30, 1971. 2. That said merchandise was appraised upon entry at the port of Los Angeles-Long Beach, California, on the basis of export value as defined in 19 U.S.C.A., section 1401a(b) (section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956) at $3.38 per dozen pieces, net packed, on the basis of a disposable cigarette lighter designated model GL-160 manufactured in and exported from Japan to the United States by Hirota Company, the manufacturer of the imported lighters and found by the appraising official to" }, { "docid": "10959738", "title": "", "text": "the appellant in this case relates to a claimed export value (section 402(b) of the Tariff Act of 1930, as amended) for the involved merchandise at the invoiced and entered values. If such claimed value is established, it would represent the correct dutiable value for the importation at bar, inasmuch as the primary basis of value of imported merchandise is export value (section 402(a) (1), (2), and (3) of the Tariff Act of 1930, as amended. The importer is a selected purchaser and a related person to the exporter as contemplated by section 402 (f) and (g) of said act, as amended, swpra. Accordingly, it is essential in the first instance to ascertain whether the entered unit price of $8,690 each fairly reflects the market value of the imported merchandise. Both parties to this controversy direct our attention to the case of United States v. Acme Steel Company, 51 CCPA 81, C.A.D. 841, a case involving similar facts to those in the case at bar. In the Acme Steel case, the merchandise consisted of certain steel strapping which was sold by Acme Canada to Acme Chicago, its parent company, at prices lower than it sold to its customers in Canada. The merchandise was appraised at the entered unit values, plus 27.40 percent, on the basis of constructed value, which represented part of the difference between the home market price and the export price to the United States. Sales in Canada were made directly to users and the expenses included selling, distribution, advertising, travel, entertainment, warehousing, freight, and repair and maintenance of tools supplied to customers, which expenses, it appeared, were not required in connection with sales to the United States. The trial court sustained the invoiced and entered values. This finding was affirmed by the appellate division of the Customs Court (50 Cust. Ct. 529, A.R.D. 152), which, found that the export price differed from the domestic price only to the extent of the amount of the said expenses, and that the deduction fairly represented savings effected by the elimination of several items comprising selling expenses. Our appellate court in" }, { "docid": "3401208", "title": "", "text": "Ford, Judge: This case is before the court on rehearing, having originally been decided in The American Greiner Electronic, Inc. v. United States, 57 Cust. Ct. 616, R.D. 11221. The merchandise consists of watch timers of a model designated on the invoice as “Chronografic Record,” which were exported from Switzerland on August 10, 1960. Said merchandise was invoiced and entered at 688 Swiss francs, net packed, per unit. It was appraised at 1,590 Swiss francs, net packed, per unit, on the basis of constructed value as defined in section 402(d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. The importer claims that the proper dutiable value is the entered value and bases this claim upon export value as defined in section 402(b) of the Tariff Act of 1980, as amended, supra, or in the alternative, upon constructed value as defined in section 402(d), supra. The statutory material relevant to the decision is as follows: Sec. 402. Value. * * * * # % (b) Expokt Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. * * * * * * * (f) DeeiNItioNS. — For the purposes of this section— (1) The term “freely sold or, in the absence of sales, offered for sale” means sold or, in the absence of sales, offered— (B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the" }, { "docid": "10959748", "title": "", "text": "C. J. Tower & Sons v. United States, 57 Cust. Ct. 601, R.D. 11212,. decided August 3, 1966, and American Greiner Electronic, Inc. v. United States, 57 Cust. Ct. 616, R.D. 11221, decided September 26, 1966. In the C. J. Tower case (R.D. 11212), supra, the merchandise consisted of a quantity of aluminum masters upon which material which was to be reproduced is typed or written. Appraisement of the merchandise was made on the basis of constructed value, as defined in sec tion 402(d) of the Tariff Act of 1930, as amended, at 20y2 cents each, Canadian currency. Plaintiff therein contended, as does appellant in the case at bar, that the proper basis was export value under section 402(b) of said act, as amended, and further that the proper dutiable value of the merchandise was the invoiced price of 14 cents each, Canadian currency, or, alternatively, at the same value on the basis of constructed value. The merchandise involved in the C. J. Tower case (R.D. 11212), supra, was exported by Addressograph-Multigraph of Canada, Ltd., to Addressograph-Multigraph Corp. in the United States. The exporter was a wholly owned subsidiary of the importer. Plaintiff’s witness in that case, comparing his firm’s export and domestic prices, stated that the United States invoice price of 14 cents per master included approximately the same percentage of profit obtained as a result of domestic sales in the Canadian market. He further testified that the United States price was 70 percent of the lowest Canadian domestic selling price and attributed the 30 percent difference to the fact that certain costs, not incurred in, nor applicable to the manufacture of products exported to the United States, were not allocated to such merchandise in determining their cost of production or sales price. Commenting on the testimony as disclosed by the record therein, the court in the C. J. Tower case, supra, page 605, stated: * * * Such cryptic language relative to these items “which are not applicable, in our opinion, to export shipments” and profit for exports being “approximately the same percentage” as for domestic sales is" }, { "docid": "12148342", "title": "", "text": "RichabdsoN, Judge: The merchandise in this case consists of cigarette lighters described on the invoices as article number HD-600, cigarette gas lighter, with additional words of description. The merchandise was exported from Japan on February 11, March 24, and April 30, 1971, entered at the port of Los Angeles-Long Beach, California, and appraised on the basis of export value as defined in 19 U.S.C.A., section 1401a(b) (section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956) at $3.38 per dozen, net packed. The parties agree that export value as defined in section 1401a(b) is the proper basis for appraisement of the lighters. Plaintiff contends, by way of amendment of its complaint that the correct appraised export value of the lighters is $2,366 per dozen, net packed. Benjamin Bloomfield, plaintiff’s buyer and sales manager, testified that he orally placed an order for 500,000 HD-600 disposable cigarette lighters with the manufacturer, K. K. Hirota, Tokyo, Japan, at the end of November, 1970, at the price of 16 cents each, plus 2, 3 or 4 mills, that the asking price was 19 cents each but it was usual for his company to get 10 to 15 percent discount due to the large quantities purchased. The witness stated that he knew Sonosuke Aoyagi, the affiant in exhibit 1, and knew that he spoke and read English very well. The affidavit of Sonosuke Aoyagi, dated June 16, 1975, received in evidence as exhibit 1, states: That I am the Vice President of Hirota Company and have been with this company for eighteen years, being responsible for supervising the sales and financing of the company. That I therefore have personal knowledge of the selling practice and pricing of the merchandise sold by our company for exportation to the United States. This includes the sales practice of cigarette lighters (disposable) invisible plastic tank, such as article number HD-600, which are sold to Rosen Enterprises, Inc. That normally merchandise sold by us is delivered to the buying agent of the American or U.S. customer in Japan at our factory. The place and physical" }, { "docid": "4782401", "title": "", "text": "indication in the official papers that the invoiced charges for ocean freight and insurance are included in the appraised values. Both parties agree that export value, as defined in section 402(b) of the Tariff Act of 1930, and as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, is the proper basis for appraisement. The parties also agree that this case is a retrial of Luckytex, Ltd. v. United States, 56 Cust. Ct. 575, R.D. 11119 (1965), wherein Chief Judge Nao sustained the appraised values of certain wearing apparel exported by Asia Industrial Development Co., Ltd., on October 11, 1961, which date is within the period of exportation involved herein. The record of the prior case was incorporated into the record of the present trial on appellant’s motion, without objection by appellee (R. 31). Appellant’s principal argument is that it has now made a prima facie case, establishing as the correct dutiable export values certain f.o.b. prices at which the merchandise was freely offered for sale to Luchytex and others, and that the deliciencies in proof noted by the court in the prior case have been overcome. Additionally, as in the earlier case, appellant argues that the merchandise was appraised at the invoiced c.i.f. prices, net, and that the appraiser erroneously failed to make allowance for the invoiced charges for ocean freight and marine insurance premium. In support of the latter contention, appellant relies upon John A. Steer & Co. v. United States, 30 Cust. Ct. 504, R.D. 8196 (1953); The Heyman Co., Inc. v. United States, 39 Cust. Ct. 707, R.D. 9033 (1957), aff'd, United States v. The Heyman Co., Inc., 43 Cust. Ct. 619, A.R.D. 113 (1959), aff'd on other grounds, Same v. Same, 48 CCPA 13, C.A.D. 755 (1960). In brief, the issue to be determined is whether, on the record as now made, appellant has established prima facie that the appraised values are erroneous, and that its claimed f.o.b. prices represent the correct dutiable export values of the imported wearing apparel. We have concluded that appellant has not sustained its dual" }, { "docid": "8583371", "title": "", "text": "Oliver, Judge: This case involves three appeals for reappraisement of merchandise consisting of various sets of imitation pearl necklaces and matching earrings, exported from Japan during the period of December 1960 to June 1961. The three appeals were consolidated at trial (B. 2). The merchandise was entered at the unit ex-factory prices appearing on the invoices, plus an item for casing and packing charges. These entered values did not include items specifically and separately listed on the invoices as shipping charges and buying commissions. In each instance, the entered values were advanced by the appraiser in returning a unit value, net packed, figure. Neither party disputes the basis for appraisement adopted by the appraiser, that is, statutory export value, as defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. What is in dispute, as will be discussed more fully below, are the proper dutiable amounts representing such statutory value. Section 402(b), Tariff Act of 1930, as amended, supra, provides as follows: (b) ExpoRt Valuge. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing ap-praisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. At the trial, plaintiff called as its only witness Mr. Paul Morris, the importer in this case. He testified that he had been in the business of importing costume jewelry for the past 16 years, importing on the average of 200,000 dollars’ worth a year. He identified plaintiff’s collective exhibit 1 as merchandise generally illustrative of the invoiced items in B62/11908, and plaintiff’s collective" }, { "docid": "10959747", "title": "", "text": "of the nonincurred costs and no such finding was made by the court in this case. Contrary to the contention advanced by counsel for the appellant on oral argument (page 13-14), the trial judge did not so find, but only stated in his opinion that the testimony of plaintiff’s witness was to the effect that the difference between the two prices was by reason of the so-called “non-incurred” costs. The Acme Steel case, supra, did not, in our opinion, establish as a principle of law the rule that no breakdown of costs is necessary in a situation such as that before us. The appellant in the case at bar has failed, in our opinion, to establish that the differential in prices between the Canadian sales price and the export price was due solely to the fact that the expenses incurred in the Canadian market were not properly included in the price at which the involved merchandise was sold for exportation. In this connection, we deem pertinent the holdings of the court in the cases of C. J. Tower & Sons v. United States, 57 Cust. Ct. 601, R.D. 11212,. decided August 3, 1966, and American Greiner Electronic, Inc. v. United States, 57 Cust. Ct. 616, R.D. 11221, decided September 26, 1966. In the C. J. Tower case (R.D. 11212), supra, the merchandise consisted of a quantity of aluminum masters upon which material which was to be reproduced is typed or written. Appraisement of the merchandise was made on the basis of constructed value, as defined in sec tion 402(d) of the Tariff Act of 1930, as amended, at 20y2 cents each, Canadian currency. Plaintiff therein contended, as does appellant in the case at bar, that the proper basis was export value under section 402(b) of said act, as amended, and further that the proper dutiable value of the merchandise was the invoiced price of 14 cents each, Canadian currency, or, alternatively, at the same value on the basis of constructed value. The merchandise involved in the C. J. Tower case (R.D. 11212), supra, was exported by Addressograph-Multigraph of Canada, Ltd.," }, { "docid": "8324770", "title": "", "text": "actual sale price of the steel tubing — i.e., $8.06 and $8.49 (U.S. funds) for the smaller and larger sizes, respectively— represented statutory export value on the asserted ground that it was a price which fairly reflected market value. Appellant (defendant below) argued to the contrary that export value could be found for the imported merchandise only on the basis of identical or similar merchandise manufactured by another company in the country of exportation, viz. Standard Tube. The trial judge sustained appellee’s contention holding that the “actual export sales prices xn Canada are more probative of an export value, at a price that fairly reflects market value, than the offered prices for export in Canada at which there were no sales * * *.\" F. W. Myers & Co., Inc. v. United States, 60 Cust. Ct. 716, 722, R.D. 11454 (1968). Appellant insists that the decision below is erroneous. It argues that appellee failed to sustain its burden of proof in not having accounted for the difference between International Tubes’ invoice prices to International Stamping and the prices at which identical or similar merchandise was sold or offered for sale in Canada by other manufacturers. It contends, also, that the court below erred in refusing to strike certain evidence, admitted over appellant’s objections, concerning purchases of steel tubing in the United States market. Finally, appellant maintains that International Tubes’ selling prices to its corporate affiliates in the United States do not form a proper basis for dutiable value under section 402 since, it says, dutiable value under that section is the price to all wholesalers buying for industrial use or for resale otherwise than at retail. At the outset, we quote the pertinent provisions of section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956: (b) Export Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of" }, { "docid": "23366994", "title": "", "text": "Mollison, Judge: This litigation involves an appeal for re-appraisement by the United States initiated by action taken by the collector of customs at the port of Chicago. The merchandise involved is a shipment of varnish imported by the Western Electric Company from Canada; it was entered and appraised at a value of 12% cents per pound, plus cost of drums, as a coal-tar product, upon the basis of the American selling pi’ice (which is defined in section 402 (g), Tariff Act of 1930 (19 U. S. C. § 1402 (g), as amended by section 8, Customs Administrative Act of 1938)) of a similar competitive article manufactured in the United States, in accordance with the provisions of paragraph 28 (c), Tariff Act of 1930 (19 U. S. C. § 1001, par. 28 (c)). For ready reference the cited provisions of law are quoted in the margin. Briefly stated, it is the contention of the plaintiff that the merchandise in issue is not a coal-tar product and hence is not dutiable on the American-selling-price basis of valuation. The facts of the case are not in dispute. The only evidence offered and received at the trial of the cause was plaintiff’s exhibit 1, a customs agent’s report on the very shipment of merchandise involved in this appeal. It is claimed by the Government that this-report shows that a foreign value (which is defined in section 402 (c) of the Tariff Act of 1930, as amended by section 8 of the Customs-Administrative Act of 1938) existed for the merchandise; that the sales to the importer were “accommodation sales” caused by the existence of unusual conditions prevailing in the plant of the Bake-lite Corporation, an American subsidiary of the exporter; that the- shipper did not sell its products for export to the United States in the ordinary course of trade, and that export value (which is defined in section 402 (d) of the Tariff Act of 1930) was thus removed from consideration; that the merchandise was offered for sale in Canada for home consumption in the usual wholesale quantities at the prices listed in the" }, { "docid": "17371122", "title": "", "text": "Lane, Judge. This is an appeal from the decision and judgment of the Second Division of the Customs Court, Appellate Term, 65 Cust. Ct. 830, A.R.D. 280 (1970), affirming the judgment of a single judge, 63 Cust. Ct. 594, R.D. 11681 (1969), sustaining the appraised values of certain unfinished condensers, or capacitors, of mica, imported from Japan in 1958. We affirm. Appellant is the customs broker of Intercontinental Industries Inc. (hereafter Intercontinental), an importer of electronic components and related goods. The merchandise involved in this appeal consists of unfinished mica condensers and is sold to manufacturers of finished condensers who fashion a casing or apply an outside coating to finish the unfinished condensers. Finished condensers are used in radio and television equipment as well as computers. The parties agree that the proper basis of appraisement for the imported unfinished mica condensers is United States value, which, under the statutory scheme of the Tariff Act of 1930, as amended in the Customs Simplification Act of 1956, is resorted to in the absence of foreign or export value. United States value is defined in relevant part in § 402(c) of the Tariff Act of 1930, as amended, as: [T]he price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise i.s freely sold or, in the absence of sales, offered for sale in the principal market of the United States for domestic consumption, packed ready for delivery, in the usual wholesale quantities and in the ordinary course of trade, with allowances made for— (1) any commission usually paid or agreed to be paid, or the addition for profit and general expenses usually made, in connection with sales in such market of imported merchandise of the same class or kind as the merchandise undergoing appraisement; (2) the usual costs of transportation and insurance ánd other usual expenses incurred with respect to such or similar merchandise from the place of shipment to the place of delivery, not including any expense provided for In subdivision (1) ; and (3) the ordinary customs duties and other" }, { "docid": "12148349", "title": "", "text": "official in this case was not the proper export value. United States v. A. Orlikoff of Mexican Artcraft Co. et al., 25 Cust. Ct. 441, Reap. Dec. 7892 (1950). As such, plaintiff has failed to sustain the issuable allegations of the complaint, and the action must, therefore, be dismissed. Accordingly, on the record the court finds as facts: 1. That the merchandise in this action consists of disposable cigarette lighters designated as model HD-600 manufactured in and exported from Japan between February 11 and April 30, 1971. 2. That said merchandise was appraised upon entry at the port of Los Angeles-Long Beach, California, on the basis of export value as defined in 19 U.S.C.A., section 1401a(b) (section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956) at $3.38 per dozen pieces, net packed, on the basis of a disposable cigarette lighter designated model GL-160 manufactured in and exported from Japan to the United States by Hirota Company, the manufacturer of the imported lighters and found by the appraising official to be the same as the imported lighters. 3. That there is no evidence in the record that the said disposable cigarette lighter designated model GL-160 is dissimilar to the imported cigarette lighter. Upon these facts the court concludes as matters of law; 1. That export value as defined in 19 U.S.C.A., section 1401a(b) (section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956) is the proper basis for determination of the value of the merchandise herein. 2. That plaintiff has not established an export value different from that returned in the appraisement of said merchandise. 3. That the appraised value of said merchandise remains in full force and effect by reason of plaintiff’s failure to overcome the presumption of correctness attaching to the appraisements herein. Judgment will be entered accordingly." }, { "docid": "10959753", "title": "", "text": "significant considerations in comparing the foreign market price with the invoice price. Without more precise evidentiary support for these cost factors than that contained in Mr. Greiner’s indefinite and generalized explanation, plaintiff has not, to the satisfaction of the court, adequately reconciled the difference between the foreign market and invoice prices. Without a more persuasive reconciliation the court cannot find, as it must, that the invoice price, when compared with the foreign market price, fairly reflects the market value of the merchandise. In our opinion, the situation which prevails in the case at bar parallels that which obtained in the C. J. Tower case (R.D. 11212) and in the American Greiner Electronic, Inc., case, supra, and calls for a similar conclusion as there made with respect to the proper value applicable to the merchandise here imported. Statutory export value has not been established for the merchandise involved in this case. In John, V. Carr & Son, Inc. v. United, States, 52 CCPA 62, C.A.D. 860, the importer appealed the decision and judgment of the Second Division, Appellate Term of the Customs Court, which affirmed the appraisement of metal parts for antivibration mounts exported from Canada on the basis of constructed value (section 402 (d) of the Tariff Act of 1930, as amended). Appellant therein contended, as in the case at bar, that the merchandise should have been appraised on the basis of export value (section 402(f) of the act, as amended), or, alternatively, that the invoice prices represented the proper constructed value of the merchandise. The manufacturer and importer of the merchandise there involved were subsidiaries of the parent corporation in this country. The record in the John V. Carr case, supra, disclosed, inter alia, that certain “fixed items,” through the accounting system employed by the exporter, were charged only to Canadian operations and were excluded from the computation of export costs. The so-called “fixed items” were described by an accountant for the exporter-appellant therein as “such things as taxes, insurance, depreciation, and other fixed elements of that nature that we would incur anyway.” Our appellate court, after pointing out" }, { "docid": "4648357", "title": "", "text": "The prices paid were actually paid and verified from the exporter’s books and records by the customs representative, who stated, page 3 of exhibit B, that there were no discrepancies noted of payments. Edmond C. W. Ng, vice president of Brentwood Wig, in his affidavit, exhibit 2, asserts that by virtue of his duties and responsibilities in that capacity, he is fully and personally familiar with the business operations of that firm and with the cost of producing the human hair products manufactured by said firm and he furnishes the costs as reflected from records kept under Ms supervision, which records were made in the regular course of business. These are statements of personal knowledge of facts over which he had access and control. In Ercona Camera Corp. et al. v. United States, 54 Cust. Ct. 675, 679, R.D. 10989 (1965), aff’d 56 Cust. Ct. 811, A.R.D. 207 (1966), the affiant in an affidavit did not have access to books and records and the court gave little probative value to it in considering cost of production or constructed value. Defendant contends that the affidavit, exhibit 2, is entitled to no weight and is insufficient to establish prima facie that the claimed values fairly reflect market values, citing Descoware Corp. (Westland) v. United States, 58 Cust. Ct. 698, R.D. 11297 (1967). That case involved cost of prodtiction as defined in section 402a(f), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, and the evidence did not disclose that the exporter's hooks and records xoere kept hy or under the supervision of an affiant. The above statute does not provide for evidence as to whether sales fairly reflect market value. The Descoware case is not controlling in the instant case. The facts adduced in the case at bar, with respect to plaintiff’s primary contention, warrant the conclusion that plaintiff has established the elements of proof of an export value as defined in section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec." } ]

[ { "docid": "22397687", "title": "", "text": "that school officials had violated respondents’ First Amendment rights by deleting the two pages of the newspaper. We granted certiorari, 479 U. S. 1053 (1987), and we now reverse. II Students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker, supra, at 506. They cannot be punished merely for expressing their personal views on the school premises — whether “in the cafeteria, or on the playing field, or on the campus during the authorized hours,” 393 U. S., at 512-513 — unless school authorities have reason to believe that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.” Id., at 509. We have nonetheless recognized that the First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,” Bethel School District No. 403 v. Fraser, 478 U. S. 675, 682 (1986), and must be “applied in light of the special characteristics of the school environment.” Tinker, supra, at 506; cf. New Jersey v. T. L. O., 469 U. S. 325, 341-343 (1985). A school need not tolerate student speech that is inconsistent with its “basic educational mission,” Fraser, supra, at 685, even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was “sexually explicit” but not legally obscene at an official school assembly, because the school was entitled to “disassociate itself” from the speech in a man ner that would demonstrate to others that such vulgarity is “wholly inconsistent with the ‘fundamental values’ of public school education.” 478 U. S., at 685-686. We thus recognized that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,” id., at 683, rather than with the federal courts. It is in this context that respondents’ First Amendment claims must be considered. A We deal first with the question whether Spectrum" } ]

[ { "docid": "16649557", "title": "", "text": "195 (1968) (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 938, 939 (1963)). At home, parents are allowed to impose considerable restraints on their children’s rights to “free expression.” At school, the school authorities stand in loco parentis to enforce minimum standards of expression. See New Jersey v. T.L.O., — U.S. -, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985) (reasonableness standard governs school searches). Similarly, schools may act to protect the children from obscene or indecent language. The courts have consistently held that greater limits may be imposed on expression aimed at children than would be allowable for communication aimed at adults. F.C.C. v. Pacifica Foundation, 438 U.S. at 749, 98 S.Ct. at 3040; Ginsberg v. New York, 390 U.S. at 638-40, 88 S.Ct. at 1279-81. Here, Fraser’s audience was primarily composed of minors. The school authorities had a substantial interest in protecting them from expression which could be shocking, embarrassing or detrimental at their stage of development. The school authorities were in the better position to determine whether the speech was harmful to other minors. Here, they concluded that Fraser’s speech was disruptive and harmful. We should not lightly question that judgment. Finally, schools perform a special function in our society. They are entrusted with the difficult task of educating children and preparing them for full participation in adult society. In addition to transmitting necessary information and techniques of learning to the students, we expect schools to instill citizenship, discipline, and acceptable morals. In short, we expect schools to inculcate society’s values and help children become fully adjusted adults. See Board of Education v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) (Brennan, J. for the plurality); Diamond, supra at 498-99. As the Supreme Court recently noted, Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather they act in furtherance of publicly mandated educational and disciplinary policies. New Jersey v. T.L.O., 105 S.Ct. at 741. Given the special nature of the high school environment, school authorities have a right" }, { "docid": "2318112", "title": "", "text": "schools are not automatically coextensive with the rights of adults in other settings,” id. at 682, 106 S.Ct. at 3164, schools are free to insist “that certain modes of expression are inappropriate and subject to sanction,” for “[t]he inculcation of these values is truly the “work of the schools.’” Id. at 683, 106 S.Ct. at 3164 (quoting Tinker, 393 U.S. at 508, 89 S.Ct. at 737). The Court also stressed the importance of maintaining a civil and well regulated school environment so as to “teach by example the shared values of a civilized social order.” Id. at 683, 106 S.Ct. at 3164. The Court in Fraser distinguished the “political viewpoint” at issue in Tinker from the type of speech before it. Id. at 685,106 S.Ct. at 3165 (emphasis added). Age was also an important factor in the Court’s holding in Fraser. The Court stressed the vulnerability of a “less mature audience” (some “only 14 years old”) to offensive speech. Id. at 683-85, 106 S.Ct. at 3164-65. Supreme Court precedent, the Court said, confirms that parents may legitimately expect schools acting on their behalf to protect their children from such speech: “[Our cases] recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children — especially in a captive audience — from exposure to sexually explicit, indecent, or lewd speech.” Id. at 684, 106 S.Ct. at 3165. The Court repeated Fraser’s more deferential approach to the authority of educators in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), in which a principal removed before publication articles in a high school student newspaper addressing students’ experiences with pregnancy and the impact of divorce on students at the school. Addressing the constitutionality of this action, as it had done previously, the Court again acknowledged the competing interests of educational authority and student speech rights, but emphasized that “[a] school need not tolerate student speech that is inconsistent with its basic educational mission.” Id. at 266, 108 S.Ct. at 567 (citations and internal quotation marks omitted). Key to the" }, { "docid": "23033353", "title": "", "text": "the school context, children are placed under State control for the undeniably important goal of \"prepar[ing them] for citizenship in the Republic.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (citation omitted). This restraint on the liberty of students is justified by the State’s own overarching interest in education. In addition, if it is unconstitutional to confine in unsafe conditions the mentally infirm, then surely it must be unconstitutional to refuse to protect from harm school children whose liberty the State restricts on its own accord. See DeShaney, 489 U.S. at 199, 109 S.Ct. 998 (\"If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional ... to confine the involuntarily committed — who may not be punished at all — in unsafe conditions.” (citation omitted)). . That is particularly true because much of the dicta in Vemonia that both precedes and follows the language quoted by the majority points in the opposite direction. In framing the degree of control that public school officials exercise over their students, the Court began with the premise that \"unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will.” 515 U.S. at 654, 115 S.Ct. 2386. The Court also noted that it had “rejected the notion that public schools ... exercise only parental power over their students,” a \"view of things” that it said is \"not entirely consonant with compulsory education laws.” Id. at 655, 115 S.Ct. 2386 (internal quotation marks omitted). And the Court \"emphasized! ] that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” id, following its passing reference to DeShaney with a recitation of the various ways in which \"school authorities ac[t] in loco parentis \" and a statement that the nature of constitutional freedoms enjoyed by students \"is what is appropriate for children in school.” Id." }, { "docid": "22331199", "title": "", "text": "that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster. Traditionally at common law, and still today, unemanci-pated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i. e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am. Jur. 2d, Parent and Child §10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmas ter is the very prototype of that status. As Blackstone describes it, a parent “may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1769). In I L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. 469 U. S., at 336. Such a view of things, we said, “is not entirely ‘consonant with compulsory education laws/ ” ibid. (quoting Ingraham v. Wright, 430 U. S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T L. O., supra, at 336. But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be" }, { "docid": "10430057", "title": "", "text": "granting the board this much disciplinary power over students, the court concluded that while the state does not owe a student the same constitutional duty of protection that it owes a prisoner in its full time custody, the student is nevertheless within the temporary custody of the state while in public school and the state also has a tutelary duty to promote and inculcate good morals, health and self discipline among its students. The Court observed that its earlier decision in New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1985) did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” ... While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” ... we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,\" ... with the power and indeed the duty to “inculcate the habits and manners of civility,” ... Thus, while children assuredly do not “shed them consti tutional rights ... at the schoolhouse gate,” ... the nature of those rights is what is appropriate for children in schools. Id., — U.S. at -, 115 S.Ct. at 2392 (emphasis added). See also Johnson v. Dallas Independent School Dist., 38 F.3d 198, 208 n. 7 (5th Cir.1994) (“Schools ... take care of children day after day for years in public facilities. Schools may be said to control children’s environments to the same or even greater degree than state-sponsored foster care services, which have been held, post-DeShaney, to bear affirmative obligations to their client children. * * * That parents yield so much of their children’s care into the hands of public school officials may well be arg-ued to place upon" }, { "docid": "13135181", "title": "", "text": "for the control and duration of basic education. See, e.g. Pierce v. Society of Sisters, 268 U.S. 510, 534 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U.S. 629, 639 [88 S.Ct. 1274, 1280, 20 L.Ed.2d 195] (1968); Meyer v. Nebraska, 262 U.S. 390 [43 S.Ct. 625, 67 L.Ed. 1042] (1923); cf. Rowan v. Post Office Dept., 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736] (1970). Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, “prepare [them] for additional obligations.” 268 U.S. at 535 [45 S.Ct. at 573]. It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Ibid, at 213-14, 92 S.Ct. at 1532-33. The Court then stated: The essence of all that has" }, { "docid": "9866174", "title": "", "text": "(1972) (“primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” particularly in matters of “moral standards, religious beliefs, and elements of good citizenship”). Notwithstanding these near-absolutist pronouncements, the Court has also recognized that for some portions of the day, children are in the compulsory custody of state-operated school systems. In that setting, the state’s power is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). For some purposes, then, “school authorities act[ ] in loco parentis.” Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). But see New Jersey v. T.L.O., 469 U.S. 325, 336-37, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (school authorities are not merely parental surrogates but also exercise public authority for Fourth Amendment purposes.). Thus, there may be circumstances in which school authorities, in order to maintain order and a proper educational atmosphere in the exercise of police power, may impose standards of conduct on students that differ from those approved by some parents. See, e.g., Vemonia, 515 U.S. at 664-65, 115 S.Ct. 2386 (allowing participation in school athletics to be conditioned upon testing for illegal drugs); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (permitting censorship of school-sponsored publication); T.L.O., 469 U.S. at 347-48, 105 S.Ct. 733 (upholding warrantless search of student’s effects). Although a student may not enjoy a right of privacy to the same extent as a free adult, there are nevertheless limitations on intrusions by school authorities. Thus, in Vemonia, although the Court approved drug tests, it was also careful to indicate that the tests were inappropriate to determine “whether the student is, for example, epileptic, pregnant, or diabetic.” 515 U.S. at 658, 115 S.Ct. 2386. In describing the justification for the random, coerced drug testing in Vemonia, the Court pointed out that the State must demonstrate “an interest that" }, { "docid": "244559", "title": "", "text": "” Lighthouse Inst., 510 F.3d at 277 (quoting Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). The Commonwealth has a legitimate interest in ensuring children taught under home education programs are achieving minimum educational standards and are demonstrating sustained progress in their educational program. See, e.g., Bd. of Educ. v. Allen, 392 U.S. 236, 245-47 & n. 7, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (“[A] substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction.... [I]f the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.”); Pierce v. Soc.’y of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (acknowledging the “power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils”). In Brown v. Board of Education, the Supreme Court noted the importance of education and the meaningful role the state plays in preparing a child for citizenship and adult life: Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. 347 U.S. 483, 493, 74" }, { "docid": "13135180", "title": "", "text": "the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught and that nothing be taught that is manifestly inimical to the public welfare. Ibid, at 534, 45 S.Ct. at 573. This Court obtains much of its guidance from Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), in which the court dealt with the conflict between Amish religious beliefs including their inseparable mode of life and the Wisconsin laws requirementing formal education to age sixteen, even if the 8th grade had been completed. The Yoder court sets forth the principles to be applied in resolving the conflict between the Free Exercise Clause and a State’s compelling interest. There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g. Pierce v. Society of Sisters, 268 U.S. 510, 534 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U.S. 629, 639 [88 S.Ct. 1274, 1280, 20 L.Ed.2d 195] (1968); Meyer v. Nebraska, 262 U.S. 390 [43 S.Ct. 625, 67 L.Ed. 1042] (1923); cf. Rowan v. Post Office Dept., 397" }, { "docid": "22331201", "title": "", "text": "exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” 469 U. S., at 339. While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” see DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 200 (1989), we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684 (1986), with the power and indeed the duty to “inculcate the habits and manners of civility,” id., at 681 (internal quotation marks omitted). Thus, while children assuredly do not “shed their constitutional rights ... at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school. See, e. g., Goss v. Lopez, 419 U. S. 565, 581-582 (1975) (due process for a student challenging disciplinary suspension requires only that the teacher “informally discuss the alleged misconduct with the student minutes after it has occurred”); Fraser, supra, at 683 (“[I]t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse”); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 273 (1988) (public school authorities may censor school-sponsored publications, so long as the censorship is “reasonably related to legitimate pedagogical concerns”); Ingraham, supra, at 682 (“Imposing additional administrative safeguards [upon corporal punishment]... would ... entail a significant intrusion into an area of primary educational responsibility”). Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various" }, { "docid": "23033354", "title": "", "text": "of control that public school officials exercise over their students, the Court began with the premise that \"unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will.” 515 U.S. at 654, 115 S.Ct. 2386. The Court also noted that it had “rejected the notion that public schools ... exercise only parental power over their students,” a \"view of things” that it said is \"not entirely consonant with compulsory education laws.” Id. at 655, 115 S.Ct. 2386 (internal quotation marks omitted). And the Court \"emphasized! ] that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” id, following its passing reference to DeShaney with a recitation of the various ways in which \"school authorities ac[t] in loco parentis \" and a statement that the nature of constitutional freedoms enjoyed by students \"is what is appropriate for children in school.” Id. at 655-56, 115 S.Ct. 2386 (internal quotation marks omitted). . Notably, one of the decisions by our sister Circuits cited by the majority specifically refuses to read the dictum in Vemonia to preclude finding a special relationship in the school context under all circumstances. See Hasenfus, 175 F.3d at 71-72. . Moreover, Middle Bucks has been subject to criticism. See, e.g., Deborah Austern Col-son, Note, Safe Enough to Learn: Placing an Affirmative Duty of Protection on Public Schools under 42 U.S.C. § 1983, 30 Harv. C.R.C.L. L. Rev. 169, 183, 196 (1995) (denouncing \"mechanical” analysis of the relationship between students and school officials, and suggesting that we should \"make case-by-case, fact-intensive inquiries into state action”); Robert C. Slim, Comment, The Special Relationship Doctrine and a School Official’s Duty to Protect Students from Harm, 46 Baylor L. Rev. 215 (1994); Case Comment, Third Circuit Finds No Affirmative Duty of Care by School Officials to Their Students: D.R. v. Middle Bucks Area Vocational Technical School, 106 Harv. L. Rev. 1224 (1993). . We do not contend that" }, { "docid": "22659693", "title": "", "text": "succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as “ideal” and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent record as law-abiding and generally self-sufficient members of society. Although the trial court in its careful findings determined that the Wisconsin compulsory school-attendance law “does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief” it also concluded that the requirement of high school attendance until age 16 was a “reasonable and constitutional” exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents’ claim under the Free Exercise Clause of the First Amendment and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in “establishing and maintaining an educational system overrides the defendants’ right to the free exercise of their religion.” 49 Wis. 2d 430, 447, 182 N. W. 2d 539, 547 (1971). I There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e. g., Pierce v. Society of Sisters, 268 U. S. 510, 534 (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of" }, { "docid": "10430058", "title": "", "text": "of control over children as to give rise to a constitutional “duty to protect,” ... we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,\" ... with the power and indeed the duty to “inculcate the habits and manners of civility,” ... Thus, while children assuredly do not “shed them consti tutional rights ... at the schoolhouse gate,” ... the nature of those rights is what is appropriate for children in schools. Id., — U.S. at -, 115 S.Ct. at 2392 (emphasis added). See also Johnson v. Dallas Independent School Dist., 38 F.3d 198, 208 n. 7 (5th Cir.1994) (“Schools ... take care of children day after day for years in public facilities. Schools may be said to control children’s environments to the same or even greater degree than state-sponsored foster care services, which have been held, post-DeShaney, to bear affirmative obligations to their client children. * * * That parents yield so much of their children’s care into the hands of public school officials may well be arg-ued to place upon the officials an obligation to protect students at least from certain kinds of foreseeably dangerous harm during regular school hours.”), cert. denied, — U.S. -, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995). For all of the foregoing reasons, I cannot agree with my colleagues that the school board’s dereliction amounts to nothing more serious in law than the situation in which a bystander witnesses the drowning of a complete stranger. Unquestionably, because the school board has accepted federal financial assistance, Title IX places upon it a duty to take appropriate measures to protect students from being subjected in the school environment to sexual harassment, abuse, and discrimination of which the board has actual knowledge. As Jane and Janet Doe presented evidence sufficient to survive summary judgment that the school board failed to do so here, the district court’s judgment should be vacated and the case remanded for further proceedings. . In reaching this conclusion, I am in agreement with the only other circuit court to squarely address this issue. See Davis v. Monroe County Board" }, { "docid": "22331200", "title": "", "text": "committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1769). In I L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. 469 U. S., at 336. Such a view of things, we said, “is not entirely ‘consonant with compulsory education laws/ ” ibid. (quoting Ingraham v. Wright, 430 U. S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T L. O., supra, at 336. But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” 469 U. S., at 339. While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” see DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 200 (1989), we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684 (1986), with the power and indeed the duty to “inculcate the habits and manners of civility,” id., at 681 (internal quotation marks omitted). Thus, while children assuredly do not “shed their constitutional rights ... at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school. See," }, { "docid": "10430056", "title": "", "text": "of appeals’ affirmance of the district court’s dismissal of Franklin’s complaint and remanded the case for further proceedings. This court should therefore reverse the district court’s summary judgment against the plaintiffs and remand this case for trial or further proceedings. Apparently underlying the majority’s conclusion that summary judgment is appropriate here is the incorrect assumption that, in general, school boards have no duty with respect to students’ safety and no power of discipline to control educationally pernicious student conduct. See maj. op. at 1013. Even if the school board had not accepted federal funds, however, it owes a much higher duty to its students and has far greater powers of control over them than that described in the majority opinion. In Vernonia School District 47J v. Acton, —— U.S.-, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Supreme Court held that a school board may require all participants in high school athletic programs to submit to urinanalysis tests for drugs regardless of whether any grounds existed to suspect a particular athlete. As partial justification for granting the board this much disciplinary power over students, the court concluded that while the state does not owe a student the same constitutional duty of protection that it owes a prisoner in its full time custody, the student is nevertheless within the temporary custody of the state while in public school and the state also has a tutelary duty to promote and inculcate good morals, health and self discipline among its students. The Court observed that its earlier decision in New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1985) did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” ... While we do not, of course, suggest that public schools as a general matter have such a degree" }, { "docid": "14108748", "title": "", "text": "of the state’s compelling interest in the education of its children is equally longstanding. See Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Board of Education v. Allen, 392 U.S. 236, 245-47 & n. 7, 88 S.Ct. 1923, 1927-29 & n. 7, 20 L.Ed.2d 1060 (1968); Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972). In Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), the Court found education to be “perhaps the most important function of state and local governments.” The Court continued: Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society____ In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Id. As the Iowa Supreme Court has recently noted, Iowa’s interest in assuring that each child receive a quality education is no less compelling. Johnson v. Charles City Community Schools Board of Education, 368 N.W.2d 74, 77-79 (Iowa), cert. denied sub nom., — U.S.-, 106 S.Ct. 594, 88 L.Ed.2d 574 (1985). The Charles City Court also recognized the “clear authority, even a duty” for some state intervention into private religious schools to ensure the state’s interests are being met. Id. at 78. In fact, Iowa has enjoyed “a long tradition of friendly coexistence between private and public schools,” dating from the first years of its statehood. Id. at 77. The minimal reporting requirements to which plaintiff principals object unquestionably serve the state’s interest in knowing whether its children are attending school and receiving an education. Plaintiffs agree that the state’s interest is compelling, but urge that Iowa be required to accommodate their religious objections to the method it has chosen to effectuate its interest by allowing parents, rather than principals, to supply the requested information. The Supreme Court has stated that a state’s interest in education “is not totally free from a balancing process" }, { "docid": "20637112", "title": "", "text": "we, like the district court, rely on Tinker, we rely on a different provision — that schools may prohibit speech that “intrudes upon ... the rights of other students.” Tinker, 393 U.S. at 508, 89 S.Ct. 733. a. Student Speech Under Tinker Public schools are places where impressionable young persons spend much of their time while growing up. They do so in order to receive what society hopes will be a fair and full education — an education without which they will almost certainly fail in later life, likely sooner rather than later. See Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“[I]t is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”). The public school, with its free education, is the key to our democracy. See id. (stating that public education “is the very foundation of good citizenship”). Almost all young Americans attend public schools. During the time they do — from first grade through twelfth — students are discovering what and who they are. Often, they are insecure. Generally, they are vulnerable to cruel, inhuman, and prejudiced treatment by others. The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at 507, 89 S.Ct. 733 (balancing the need for “scrupulous protection of Constitutional freedoms of the individual” against the need of schools to perform their proper educational function). This court has expressly recognized the need for such balance: “States have a compelling interest in their educational system, and a balance must be met between the First Amendment rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir.2001). Although public school students do not “shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate,” Tinker, 393 U.S. at 506," }, { "docid": "9866173", "title": "", "text": "68 L.Ed.2d 640 (1981)) (some internal quotes omitted). In Troxel v. Granville, — U.S. -, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Court reiterated that the parental interest in “the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by this Court .” Id. at 2059. That case reaffirmed the validity of such long-standing precedents as Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (right of parents to control education of their children), Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (right to direct upbringing and education of children), and Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944), where the Court said “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” See also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” particularly in matters of “moral standards, religious beliefs, and elements of good citizenship”). Notwithstanding these near-absolutist pronouncements, the Court has also recognized that for some portions of the day, children are in the compulsory custody of state-operated school systems. In that setting, the state’s power is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). For some purposes, then, “school authorities act[ ] in loco parentis.” Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). But see New Jersey v. T.L.O., 469 U.S. 325, 336-37, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (school authorities are not merely parental surrogates but also exercise public authority for Fourth Amendment purposes.). Thus, there may be circumstances in which school authorities, in order to maintain" }, { "docid": "20637113", "title": "", "text": "through twelfth — students are discovering what and who they are. Often, they are insecure. Generally, they are vulnerable to cruel, inhuman, and prejudiced treatment by others. The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at 507, 89 S.Ct. 733 (balancing the need for “scrupulous protection of Constitutional freedoms of the individual” against the need of schools to perform their proper educational function). This court has expressly recognized the need for such balance: “States have a compelling interest in their educational system, and a balance must be met between the First Amendment rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir.2001). Although public school students do not “shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, the Supreme Court has declared that “the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed,2d 592 (1988) (internal citation and quotation marks omitted). Thus, while Harper’s shirt embodies the very sort of political speech that would be afforded First Amendment protection outside of the public school setting, his rights in the case before us must be determined “in light of [those] special characteristics.” Tinker, 393 U.S. at 506, 89 S.Ct. 733. This court has identified “three distinct areas of student speech,” each of which is governed by different Supreme Court precedent: (1) vulgar, lewd, obscene, and plainly offensive speech which is governed by Fraser, (2) school-sponsored speech which is governed by Hazelwood, and (3) all other speech which is governed by Tinker. Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 529 (9th" }, { "docid": "11898902", "title": "", "text": "on developing evidence against a particular troublemaker.” T.L.O., 469 U.S. at 353, 105 S.Ct. 733 (Blackmun, J., concurring in the judgment). This is not to say that we must rubber stamp every school search. While “unblinking deference,” Majority at 1079-80, is certainly not called for, we should recognize that our normal, healthy skepticism of government authority must be reconciled with the realities of the school environment. “[T]eachers have a degree of familiarity with, and authority over, their students that is unparalleled except perhaps in the relationship between parent and child.” T.L.O., 469 U.S. at 348, 105 S.Ct. 733 (Powell, J., joined by O’Connor, J., concurring). Whereas “[l]aw enforcement officers function as adversaries of criminal suspects,” “[rjarely does this type of adversarial relationship exist between school authorities and pupils.... The attitude of the typical teacher is one of personal responsibility for the student’s welfare as well as for his education.” Id. at 349-50, 105 S.Ct. 733. T.L.O.’s emphasis on these aspects of the school environment has been reaffirmed in subsequent cases. In Vernonia School District 47J v. Acton, the Court rejected a Fourth Amendment challenge to a school district’s policy of conducting random urinalysis drug testing on student athletes, which required those students to urinate under teacher supervision. 515 U.S. 646, 648, 650, 664-65, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). In doing so, it noted that T.L.O. emphasized that “the State’s power over school-children” is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Id. at 655, 115 S.Ct. 2386. In Acton, the school’s role as a “guardian and tutor” was the “most significant element” in the Court’s decision. Id. at 665, 115 S.Ct. 2386. Considering the government’s interest in “[d]eterring drug use by our Nation’s school children,” the Court opined that “the nature of the concern is important— indeed, perhaps compelling-[which] can hardly be doubted.” Id. at 661, 115 S.Ct. 2386. Students are the most susceptible to the physical, psychological, and addictive effects of drugs, id., and “of course the effects of a drug-infested school are visited not just upon" } ]

[ { "docid": "23644745", "title": "", "text": "the authorization of the owners of the accounts); SEC v. Kimmes, 799 F.Supp. 852, 856-57 (N.D.Ill.1992) (defendant maintained artificially high stock prices by buying and selling stock through “undisclosed nominee accounts,” distributing “false and misleading registration statements,” and filing “false and materially misleading period reports” with the SEC), aff'd. sub nom., SEC v. Quinn, 997 F.2d 287 (7th Cir.1993); SEC v. Malenfant, 784 F.Supp. 141, 144-45 (S.D.N.Y.1992) (defendant arranged “matched buy and sell orders” to “create a misleading appearance of active trading in the Texscan common stock” and thus drive up the price of the stock). Once again, Colkitt fails to proffer any evidence that GFL engaged in any such inappropriate conduct. Colkitt attempts to overcome this dearth of evidence of deceptive or manipulative conduct on the part of GFL by claiming that short sales, by their very nature, “convey to market participants negative information about the prospects of the firm.” Br. of Appellant at 39. Colkitt’s argument misses the mark, however, because conveying negative information about a firm does not constitute market manipulation unless the information is untruthful. Indeed, legitimate short sales often convey negative information about a company insofar as short sales suggest that a stock’s price is overvalued, but that does not mean that such sales distort the market. To the contrary, short selling can help move an overvalued stock’s market price toward its true value, thus creating a more efficient marketplace in which stock prices reflect all available relevant information about the stock’s economic value. See Sullivan & Long, 47 F.3d at 861-62. Colkitt maintains that National Medical and EquiMed were not overvalued. He insists that, because GFL did not argue before the district court that it sold short because it believed the stocks were overvalued, Colkitt is entitled to the inference that “the short sales were made at least in part to convey to the market the false impression that the stocks were overvalued so as to result in a decline in share prices.” Br. of Appellant at 40 (emphasis in original). It would not be reasonable to draw such an inference, however, for to" } ]

[ { "docid": "11356732", "title": "", "text": "(11th Cir. 2011) (quoting Basic Inc., 485 U.S. at 241, 108 S.Ct. 978). “If a market is generally efficient in incorporating publiely available information into a security’s market price, it is reasonable to presume that a particular public, material misrepresentation will be reflected in the security’s price.” Amgen, Inc. v. Conn. Ret. Plans and Trust Funds, — U.S. -, 133 S.Ct. 1184, 1192, 185 L.Ed.2d 308 (2013). It is also reasonable to presume “that most investors ... will rely on the security’s market price as an unbiased assessment of the security’s value in light of all public information.” Id. Thus, if the Basic presumption applies, the plaintiff may, subject to evidence in rebuttal, show reliance on a classwide basis without resorting to individualized evidence. To trigger the Basic presumption, the plaintiff generally must prove that (1) “the alleged misrepresentations were publicly known,” (2) “the stock traded in an efficient market,” and (3) “the relevant transaction took place between the time the misrepresentations were made and the time the truth was revealed.” Local 703, 762 F.3d at 1254 (internal quotation marks omitted); see also Amgen, Inc., 133 S.Ct. at 1192-93; FindWhat Inv’r Grp., 658 F.3d at 1310. Of these three elements, the second factor, known as informational efficiency, requires more explanation. Informational efficiency refers to “a prediction or implication about the speed with which prices respond to information.” In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 14 (1st Cir. 2005). “Determining whether a market is informationally efficient, therefore, involves analysis of the structure of the market and the speed with which all publicly available information is impounded in price.” Id. This determination is “fact-intensive” and demands flexibility. Local 703, 762 F.3d at 1254. Therefore, courts have not dictated “a comprehensive analytical framework for determining whether the market for a particular stock is efficient,” and instead have recognized “general characteristics of an efficient market” including “high-volume trading activity facilitated by people who analyze information about the stock or who make trades based upon that information.” Id. at 1254-55; see, e.g., In re Scientific-Atlanta, Inc. Sec. Litig., 571 F.Supp.2d 1315, 1339-40 (N.D." }, { "docid": "5425467", "title": "", "text": "A reasonable jury could infer from this testimony that the Flynn reports were necessary to fully disclose the truth of the alleged fraud. See Perkins v. Standard Oil Co. of Cal., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969) (“If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what the evidence proves is for the jury.”). Alternatively, Defendants contend that, even assuming the Flynn reports were necessary to fully disclose the alleged fraud, the efficient market would have absorbed the information into the price of Apollo stock by the end of trading on September 20, the day the reports were issued. Dr. Feinstein’s use of a two-day window to measure the effect of the corrective disclosures, Defendants maintain, is inconsistent with the efficient market hypothesis. “An efficient market is one which rapidly reflects new information in price.” 4 Alan R. Bromberg & Lewis D. Lowenfels, Bromberg and Lowenfels on Securities Fraud and Commodities Fraud § 7:484, at 7-925 (2d ed.2007). The Ninth Circuit, however, has declined to adopt “a bright-line rule requiring an immediate market reaction” and instead focuses on the specific facts of each case. No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 934 (9th Cir.2003); see also Basic, 485 U.S. at 249 n. 28, 108 S.Ct. 978 (specifically declining “to adopt any particular theory of how quickly and completely publicly available information is reflected in the market price”). In this case, the proposed testimony of Lead Plaintiffs expert witness directly contradicts Defendants’ contention. Thus, whether the efficient market would have absorbed the information in the Flynn reports by the end of trading on September 20 as opposed to September 21 is a genuine issue of material fact for the jury to decide. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1144 (9th Cir.1997) (“ ‘As a general rule, summary judgment is inappropriate where an expert’s testimony supports the nonmoving party’s case.’ ” (quoting In re Apple Computer Sec. Litig., 886 F.2d at 1116)). IV." }, { "docid": "11356731", "title": "", "text": "Fund v. Regions Fin. Corp., 762 F.3d 1248, 1253-54 (11th Cir. 2014) (citing Basic Inc. v. Levinson, 485 U.S. 224, 245, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)); United States v. Ebbers, 458 F.3d 110, 126-27 (2d Cir. 2006) (recognizing the Basic presumption as a means for proving reliance for purposes of loss calculation under U.S.S.G. § 2B1.1); see also United States v. Peppel, 707 F.3d 627, 646 (6th Cir. 2013) (same). “Under the Basic presumption, plaintiffs may benefit from a rebuttable presumption of class-wide reliance ‘based on what is known as the fraud-on-the-market theory.’” Local 703, 762 F.3d at 1254 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 811, 131 S.Ct. 2179, 180 L.Ed.2d 24 (2011)). “Fraud-on-the-market claims derive from the so-called efficient market hypothesis, which provides, in the words of the Supreme Court, that ‘in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.’” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1309-10 (11th Cir. 2011) (quoting Basic Inc., 485 U.S. at 241, 108 S.Ct. 978). “If a market is generally efficient in incorporating publiely available information into a security’s market price, it is reasonable to presume that a particular public, material misrepresentation will be reflected in the security’s price.” Amgen, Inc. v. Conn. Ret. Plans and Trust Funds, — U.S. -, 133 S.Ct. 1184, 1192, 185 L.Ed.2d 308 (2013). It is also reasonable to presume “that most investors ... will rely on the security’s market price as an unbiased assessment of the security’s value in light of all public information.” Id. Thus, if the Basic presumption applies, the plaintiff may, subject to evidence in rebuttal, show reliance on a classwide basis without resorting to individualized evidence. To trigger the Basic presumption, the plaintiff generally must prove that (1) “the alleged misrepresentations were publicly known,” (2) “the stock traded in an efficient market,” and (3) “the relevant transaction took place between the time the misrepresentations were made and the time the truth was revealed.” Local 703, 762 F.3d" }, { "docid": "16267601", "title": "", "text": "of information before an investor. Id. at 244, 108 S.Ct. 978. In a modern securities market, by contrast, “the market is interposed between seller and buyer and, ideally, transmits information to the investor in the processed form of a market price. Thus the market is performing a substantial part of the valuation process performed by the investor in a facé-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price.” Id. (quoting In re LTV Sec. Litig., 88 F.R.D. 134, 143 (N.D.Tex.1980)). Persuaded that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations,” the Court concluded that “[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price.” Id. at 246-47, 108 S.Ct. 978. The Court held that “[b]ecause most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action.” Id. at 247, 108 S.Ct. 978. Application of the reliance presumption is not, however, automatic in all federal securities-fraud actions. To gain the benefit of the presumption, a plaintiff must prove “(1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market”; and (4) that the plaintiff purchased the shares after the misrepresentations but before the truth was revealed. Basic, 485 U.S. at 248 n. 27, 108 S.Ct. 978 (citing Levinson v. Basic, Inc., 786 F.2d 741, 750 (6th Cir.1986)). In this case, Grant Thornton contends that the fraud-on-the-market theory cannot be applied to create the reliance presumption because (1) Keystone’s shares were not traded on an efficient market, and (2) Grant Thornton did not make any public misrepresentations — i.e., misrepresentations on which the market could rely. It therefore contends that as a matter of law, the district court erred in applying the fraud-on-the-market presumption" }, { "docid": "11360091", "title": "", "text": "transactions. See In re Livent, Inc. Sec. Litig., 211 F.R.D. 219, 222 (S.D.N.Y.2002) (holding that notes not purchased on a public exchange but “bought and sold through an informal net of contacts among institutional investors and brokers who would exchange bids and negotiate prices privately” and where there “was no centralized source of price and trading information” was “inconsistent with the central tenet of ‘fraud on the market’ theory, which presupposes that ‘an efficient securities market rapidly incorporates all publicly available information about a company’s business and financial situation.’”); Camden Asset Management, L.P. v. Sunbeam Corp., No. 99-CV-8275, 2001 WL 34556527, *10 (S.D.Fla. July 3, 2001) (“debentures were not priced efficiently” where “the only way to obtain pricing information ... was by ‘calling around,’ rather than relying on a market where bids, asks, and transactions are quoted publicly and accurate transaction data and information is [sic ] available”); Greenberg v. Boettcher & Co., 755 F.Supp. 776, 782 (N.D.Ill.1991) (an efficient market for bonds is “ ‘a developed market — a secondary market with a relatively high level of trading activity and for which trading information such as price and volume were readily available’ ”). In addition to joining in the Financial Institution Defendants’ briefs, Barclays, in a separate memorandum (#4492), points out that Barclays did not make any misrepresentations upon which class member or the market could have relied. It argues that the fraud-on-the-market doctrine is unavailable against Barclays because the doctrine applies only to Rule 10b-5(b) claims; thus there are no common questions, including questions of reliance, that will predominate in claims against Bar-clays. It is also unavailable because Lead Plaintiff failed to show that any statement by Barclays had any effect on Enron’s stock price or was anything other than confirmatory under Greenberg v. Crossroads Sys., Inc., 364 F.3d 657 (5th Cir.2004). Deutsche Bank entities filed additional Opposition (# 4489) to the motion for class certification. They identify as the § 10(b) allegations against them that Deutsche Bank entities made misrepresentations in Osprey, Yosemite and/or Marlin offering memoranda and in debt and equity analyst reports. With respect to" }, { "docid": "15863280", "title": "", "text": "market” doctrine, Plaintiffs’ claims nevertheless survive dismissal. Construing the alleged facts in the light most favorable to Plaintiffs as I am required to do, the Consolidated Complaint alleges that because of the publicly available information regarding Angiozyme, Plaintiffs construed the Press Release’s announcement of “important corporate and product news” constituting “a history-making leap” as something other than the previously disclosed commencement of Phase II trials. Consequently, Plaintiffs have alleged that, notwithstanding the cautionary language in the May 17, 1999 Form 10-K filing, they believed based on the Press Release that Defendants would reveal at the November 17, 1999 press conference information not already “on the market.” I conclude the “truth on the market” doctrine does not require dismissal of the Consolidated Complaint. Plaintiffs have met their burden in pleading that Defendants’ statements were materially false or misleading. ii. Defendants next argue that Plaintiffs cannot take advantage of the “fraud on the market” presumption of reliance. Specifically, Defendants claim that Plaintiffs have not plead adequately an efficient market, which is a prerequisite to triggering the presumption. I disagree. The “fraud on the market” doctrine, endorsed by the Supreme Court in Basic, see Basic, 485 U.S. at 241-42, 108 S.Ct. 978, recognizes that in an open, efficient, and developed market, where millions of shares are traded daily, investors must rely on the market to perform a valuation process which incorporates all publicly available information, including misinformation. See id. at 241-47, 108 S.Ct. 978. Consequently, the reliance of individual plaintiffs on the integrity of a price in such a market, and implicitly the misinformation that contributed to that price, may be presumed.„ See id. at 247, 108 S.Ct. 978. See also Grossman, 120 F.3d at 1118 (recognizing the “fraud on the market” doctrine). In order to take advantage of the doctrine, however, a plaintiff must plead, and ultimately prove, that the market on which the security is traded is efficient. See Wiles, 223 F.3d at 1163 n. 2 (recognizing that the “fraud on the market doctrine,” and its corresponding presumption of reliance, only apply to efficient markets). See also Freeman v. Laventhol &" }, { "docid": "23000069", "title": "", "text": "The plaintiff must show that the defendant’s fraud — as opposed to some other factor — proximately caused his claimed losses. Dura, 544 U.S. at 342-43, 125 S.Ct. 1627; Bruschi v. Brown, 876 F.2d 1526, 1530 (11th Cir.1989). However, the plaintiff need not show that the defendant’s misconduct was the “sole and exclusive cause” of his injury; he need only show that the defendant’s act was a “substantial” or “significant contributing cause.” Robbins v. Koger Properties, Inc., 116 F.3d 1441, 1447 (11th Cir.1997) (quoting Bruschi, 876 F.2d at 1531). The Plaintiffs’ claims here rely on a fraud-on-the-market theory of causation. Fraud-on-the-market claims derive from the so-called efficient market hypothesis, which provides, in the words of the Supreme Court, that “in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.” See Basic, 485 U.S. at 241, 108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir.1986)). Because “millions of shares chang[e] hands daily,” id. at 243, 108 S.Ct. 978, and a critical mass of “market makers” study the available information and influence the stock price through trades and recommendations, id. at 248, 108 S.Ct. 978, an efficient capital market rapidly and efficiently digests all available information and translates that information into “the processed form of a market price,” id. at 244, 108 S.Ct. 978. A corollary of the efficient market hypothesis is that disclosure of confirmatory information — or information already known by the market — will not cause a change in the stock price. This is so because the market has already digested that information and incorporated it into the price. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 665-66 (5th Cir.2004) (“[CJonfirmatory information has already been digested by the market and will not cause a change in stock price.”). A “fraud on the market” occurs when a material misrepresentation is knowingly disseminated to an information-ally efficient market. Basic, 485 U.S. at 247, 108 S.Ct. 978. Just as an efficient market translates all available truthful information into the stock price," }, { "docid": "23000070", "title": "", "text": "S.Ct. 978, and a critical mass of “market makers” study the available information and influence the stock price through trades and recommendations, id. at 248, 108 S.Ct. 978, an efficient capital market rapidly and efficiently digests all available information and translates that information into “the processed form of a market price,” id. at 244, 108 S.Ct. 978. A corollary of the efficient market hypothesis is that disclosure of confirmatory information — or information already known by the market — will not cause a change in the stock price. This is so because the market has already digested that information and incorporated it into the price. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 665-66 (5th Cir.2004) (“[CJonfirmatory information has already been digested by the market and will not cause a change in stock price.”). A “fraud on the market” occurs when a material misrepresentation is knowingly disseminated to an information-ally efficient market. Basic, 485 U.S. at 247, 108 S.Ct. 978. Just as an efficient market translates all available truthful information into the stock price, the market processes the publicly disseminated falsehood and prices it into the stock as well. See id. at 241-42, 243-44, 246-47, 108 S.Ct. 978. The market price of the stock will then include an artificial “inflationary” value — the amount that the market mistakenly attributes to the stock based on the fraudulent misinformation. So long as the falsehood remains uncorrected, it will continue to taint the total mix of available public information, and the market will continue to attribute the artificial inflation to the stock, day after day. If and when the misinformation is finally corrected by the release of truthful information (often called a “corrective disclosure”), the market will recalibrate the stock price to account for this change in information, eliminating whatever artificial value it had attributed to the price. That is, the inflation within the stock price will “dissipate.” In a fraud-on-the-market case, the Supreme Court allows the reliance element of a Rule 10b-5 claim to be rebuttably presumed, so long as the defendant’s fraudulent misstatement was material and the market was informationally" }, { "docid": "13141537", "title": "", "text": "market price.” 485 U.S. at 248 n. 28, 108 S.Ct. 978. The Seventh Circuit has noted that the fraud-on-the-market doctrine, which, as noted, relies on the efficient market theory, “presumes that news is promptly incorporated into stock price.” Roots P’ship v. Lands’ End, Inc., 965 F.2d 1411, 1419 (7th Cir.1992) (emphasis added) (presumption of reliance rebutted where company issued allegedly fraudulent earnings prediction in April, announced actual earnings results in May, but plaintiff did not purchase shares until July; efficient market would have incorporated the actual results, as well as the prediction, long before purchase). The Seventh Circuit has never held that such incorporation occurs “immediately,” however. In Asher, cited by Defendants, the court did not discuss the speed at which share prices reflect new information, but rather held that a plaintiff seeking the benefit of the fraud-on-the-market theory to show reliance must accept that in an efficient market, all, not just some, publicly available information is reflected in share prices. 377 F.3d at 732. Defendants cite three decisions that indeed refer to an efficient market as one that “immediately” reflects new information. In In re Burlington Coat Factory Securities Litigation, then-Judge Alito stated that “efficient markets are those in which information important to reasonable investors (in effect, the market) is immediately incorporated into stock prices.” 114 F.3d 1410, 1425 (3d Cir.1997) (citation omitted). This statement appears in the context of materiality, however, to support the court’s holding that a statement that did not affect share price was not “material” because, the lack of share price movement showed that the information was not important to a reasonable investor. Id. A court in this district quoted the above language from In re Burlington in the same context, but held that the plaintiffs had alleged share price movements sufficient to establish materiality. Takara, 429 F.Supp.2d at 976. Neither decision involved the issue of whether an efficient market invariably incorporates new information immediately, or whether such incorporation may occur, in some circumstances, after investors have some time to digest the news. Finally, and more explicitly, the district court in Cammer v. Bloom, engaging" }, { "docid": "17414121", "title": "", "text": "that ‘in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.’ ” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1309-10 (11th Cir.2011) (quoting Basic Inc. v. Levinson, 485 U.S. 224, 241, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988)), cert. denied, — U.S. -, 133 S.Ct. 109, 184 L.Ed.2d 23 (2012). Therefore, “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations,” Basic, 485 U.S. at 246, 108 S.Ct. at 991, and we can presume “that an investor relies on public misstatements whenever he buys or sells stock at the price set by the market,” Halliburton, 131 S.Ct. at 2185 (internal quotation marks omitted). Not surprisingly, and because the fraud-on-the-market theory permits them to forego the onerous task of demonstrating individual reliance on a purported misstatement, plaintiffs in class-action securities fraud cases often invoke it to establish their prima facie case. The present case is no exception. The Investors allege in their complaint that they are “entitled to a presumption of reliance under the fraud[-]on[-]the[-]market doctrine” because “the market for St. Joe’s common stock promptly digested current information regarding St. Joe from all publicly available sources.” We therefore assume, for purposes of this motion, that the market for St. Joe’s common stock is efficient and that all publicly available information is incorporated into the market price of St. Joe’s stock. As will be shown, however, though the fraud-on-the-market theory relieves the Investors of the requirement that they show reliance, it also has a dire — and indeed fatal — effect on their ability to demonstrate loss causation. 2. Loss Causation To show loss causation in a § 10(b) claim, a plaintiff must offer “proof of a causal connection between the misrepresentation and the investment’s subsequent decline in value.” Robbins, 116 F.3d at 1448; see 15 U.S.C. § 78u-4(b)(4) (requiring that the plaintiff prove that the misrepresentation “caused the loss for which the plaintiff seeks to recover”). “In other words, in a fraud-on-the-market case, the" }, { "docid": "13141536", "title": "", "text": "U.S. 224, 244-47, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). In an efficient capital market, all publicly available information is reflected in the market price of a security. Asher v. Baxter Int’l, Inc., 377 F.3d 727, 731-32 (7th Cir.2004). Thus, an investor who buys or sells shares at the price set by an efficient market is entitled, for purposes of establishing a § 10(b) claim, to a rebuttable presumption that she traded in reliance on any public material misrepresentations. Basic, 485 U.S. at 247, 108 S.Ct. 978. The presumption can satisfy the required “transaction causation” element of the claim. See Dura Pharm., 544 U.S. at 341, 125 S.Ct. 1627. The parties in this case, however, dispute the nature of an efficient market in the context of loss causation, rather than transaction causation. The Supreme Court in Basic expressly declined to discuss how quickly new information is incorporated into share prices in an efficient market: “we do not intend conclusively to adopt any particular theory of how quickly and completely publicly available information is reflected in market price.” 485 U.S. at 248 n. 28, 108 S.Ct. 978. The Seventh Circuit has noted that the fraud-on-the-market doctrine, which, as noted, relies on the efficient market theory, “presumes that news is promptly incorporated into stock price.” Roots P’ship v. Lands’ End, Inc., 965 F.2d 1411, 1419 (7th Cir.1992) (emphasis added) (presumption of reliance rebutted where company issued allegedly fraudulent earnings prediction in April, announced actual earnings results in May, but plaintiff did not purchase shares until July; efficient market would have incorporated the actual results, as well as the prediction, long before purchase). The Seventh Circuit has never held that such incorporation occurs “immediately,” however. In Asher, cited by Defendants, the court did not discuss the speed at which share prices reflect new information, but rather held that a plaintiff seeking the benefit of the fraud-on-the-market theory to show reliance must accept that in an efficient market, all, not just some, publicly available information is reflected in share prices. 377 F.3d at 732. Defendants cite three decisions that indeed refer to an efficient" }, { "docid": "1814013", "title": "", "text": "and the Fraud-on-the Market Theory. Defendants contend that individual issues concerning reliance predominate over common issues, at least for a portion of the proposed class period. As is often the case in securities actions, plaintiff relies on the “fraud-on-the-market” theory to establish reliance. In Basic, Inc. v. Levinson, 485 U.S. 224, 242-43, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court ruled that reliance may be presumed in securities cases under the fraud-on-the-market doctrine. Basic “created a rebuttable presumption of investor reliance based on the theory that investors presumably rely on the market price, which typically reflects the misrepresentation or omission.” No. 81 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 934 n. 12 (9th Cir.2003). Without the presumption, class certification would be virtually impossible as individual questions regarding reliance would predominate over common questions. Binder v. Gillespie, 184 F.3d 1059, 1063 (9th Cir.1999); In re Initial Public Offering Securities Litigation, 471 F.3d 24, 42-43 (2d Cir. 2006). The fraud-on-the-market theory is based on the efficient market hypothesis (in some form) and therefore is contingent upon the alleged misrepresentation or omission being disseminated into an efficient market: The fraud-on-the-market presumption is “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business ____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements” .....Thus, the presumption of reliance is available only when a plaintiff alleges that a defendant made material representations or omissions concerning a security that is actively traded in an “efficient market,” thereby establishing a “fraud on the market.” Binder v. Gillespie, 184 F.3d 1059, 1064 (9th Cir.1999) (citations omitted). Specifically, the requirements for the presumption are as follows: (1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market; and (4) that the plaintiff traded the shares between the time the misrepresentations were made and the time the truth" }, { "docid": "12181357", "title": "", "text": "Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)). Notably, the United States Supreme Court in Dura explained that reliance (transaction causation) and loss causation were separate elements. Dura, 544 U.S. at 341-42, 125 S.Ct. 1627. Loss causation is “a causal connection between the material misrepresentation and the loss.” Id. at 342, 125 S.Ct. 1627. Reliance, which courts use interchangeably with “transaction causation” in securities cases, requires plaintiffs to show that they relied on the misrepresentation at issue when deciding to purchase the security in question. Id. at 341-42, 125 S.Ct. 1627. While related, loss causation and transaction causation (reliance) are two distinct elements. Loss causation is the bridge between reliance and actual damages, akin to proximate causation in a tort action. Id. at 342, 344, 125 S.Ct. 1627. The United States Supreme Court has held that when securities fraud class-action plaintiffs meet certain requirements, they are entitled to a fraud-on-the- market presumption of reliance. This creates a rebuttable presumption that the plaintiffs in the class actually relied on the defendants’ material misrepresentations or omissions when purchasing or selling a security. Basic Inc. v. Levinson, 485 U.S. 224, 248, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The presumption is founded on the theory that “in a modern and efficient securities market, the market price of a stock incorporates all available public information. Therefore, any person who trades shares relies on the integrity of the market price.” No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp. 320 F.3d 920, 947 (9th Cir.2003) (citations omitted). “[T]he fraud-on-the-market theory is premised on the fact that a misrepresentation has affected the stock’s price incongruently to the stock’s true value. Only then is detrimental reliance presumed because a plaintiff traded stock relying on the integrity of the market price.” No. 84, 320 F.3d at 948 (citations and quotation omitted). The fraud-on-the-market presumption is rebuttable by “[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff.” Basic, 485 U.S. at 248, 108 S.Ct. 978. If the defendant can show that" }, { "docid": "22068412", "title": "", "text": "for failing to adequately allege personal jurisdiction. III. Reliance To state a valid claim for securities fraud under § 10(b) and Rule 10b-5, a plaintiff must allege that the defendant: (1) made a misstatement or an omission of a material fact; (2) with scienter; (3) in connection with the purchase or the sale of a security; (4) upon which the plaintiff reasonably relied; and (5) that the plaintiffs reliance was the proximate cause of his or her injury. See In re Ikon Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir. 2002). If a plaintiff fails to allege any of these elements, the complaint must be dismissed. See In re Westinghouse Sec. Litig., 90 F.3d 696, 712-13 (3d Cir.1996). A plaintiff may prove reasonable reliance under a fraud-on-the-market theory. See Semerenko v. Cendant Corp., 223 F.3d 165, 178 (3d Cir.2000). Under this theory, a plaintiff is entitled to a presumption of reliance if he bought securities in an efficient market;' in an efficient market, the price of the security is assumed to have incorporated the alleged misrepresentations of the defendant. See id. Pinker alleges that “[a]t all relevant times, the market for Roche’s ADRs was an efficient market that promptly digested cur rent information with respect to the Company from all publicly available sources and reflected such information in Roche’s stock price.” In light of Roche’s numerous alleged misrepresentations about the competitiveness of the vitamin market, Pinker contends that he has adequately pled reliance under a fraud-on-the-market theory becausq he bought Roche ADRs at a price that was artificially inflated due to the market’s reliance on these misrepresentations. The District Court concluded that Pinker had failed to plead reliance in light of the complaint’s acknowledgment of both Pinker’s and the market’s awareness of a Minneapolis law firm’s public announcement of its plans to sue Roche for antitrust violations on March 12, 1999. Because Pinker did not purchase his Roche ADRs until April 27, the Court concluded that the announcement of the antitrust lawsuit had been integrated into the price of Roche ADRs and that, as a result, Pinker could not" }, { "docid": "7340233", "title": "", "text": "108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)) (alteration in original). This hypothesis is known as the efficient capital market hypothesis. The Supreme Court appears to have endorsed the semi-strong version of the efficient capital market hypothesis. See Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir.2010); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 10 n. 16 (1st Cir.2005). That version assumes stock prices reflect all publicly available information, but not privately held information. See Schleicher, 618 F.3d at 685. Accordingly, investors who buy or sell securities at the price set by “an impersonal, well-developed market” do so “in reliance on the integrity of that price.” Basic, 485 U.S. at 247, 108 S.Ct. 978. “Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations ... may be presumed....” Id. Thus, when the presumption of reliance is successfully invoked, the predominance requirement is met with respect to the element of reliance. To invoke the fraud-on-the-market presumption of reliance, plaintiffs must show they traded shares in an efficient market, Semerenko v. Cendant Corp., 223 F.3d 165, 178 (3d Cir.2000), In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1419 n. 8 (3d Cir.1997), and the misrepresentation at issue became public, Stoneridge, 552 U.S. at 159, 128 S.Ct. 761. Once the presumption of reliance is successfully invoked, the court presumes “(1) that the market price of the security actually incorporated the alleged misrepresentations, (2) that the plaintiff actually relied on the market price of the security as an indicator of its value, and (3) that the plaintiff acted reasonably in relying on the market price of the security.” Semerenko, 223 F.3d at 178-79. But a defendant may rebut the presumption of reliance by “[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price.... ” Basic, 485 U.S. at 248, 108 S.Ct. 978; see also Semerenko, 223 F.3d at 179 (“The fraud on the market theory of reliance" }, { "docid": "7340232", "title": "", "text": "the investor would not have purchased or sold the security.” Newton, 259 F.3d at 172. Reliance may be proven directly, but “[requiring proof of individualized reliance from each member of [a] proposed plaintiff class effectively would [prevent plaintiffs] from proceeding with a class action, since individual issues then would ... overwhelm^ ] the common ones.” Basic, Inc. v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). If reliance must be individually proven, a proposed class cannot meet the Rule 23(b) predominance requirement. In order to facilitate securities class-actions, the Supreme Court established a rebuttable presumption of class-wide reliance based on the fraud-on-the-market theory. Id. at 245-47, 108 S.Ct. 978. “ ‘The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. ...’” Id. at 241-42, 108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)) (alteration in original). This hypothesis is known as the efficient capital market hypothesis. The Supreme Court appears to have endorsed the semi-strong version of the efficient capital market hypothesis. See Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir.2010); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 10 n. 16 (1st Cir.2005). That version assumes stock prices reflect all publicly available information, but not privately held information. See Schleicher, 618 F.3d at 685. Accordingly, investors who buy or sell securities at the price set by “an impersonal, well-developed market” do so “in reliance on the integrity of that price.” Basic, 485 U.S. at 247, 108 S.Ct. 978. “Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations ... may be presumed....” Id. Thus, when the presumption of reliance is successfully invoked, the predominance requirement is met with respect to the element of reliance. To invoke the fraud-on-the-market presumption of reliance, plaintiffs must show" }, { "docid": "12181358", "title": "", "text": "or omissions when purchasing or selling a security. Basic Inc. v. Levinson, 485 U.S. 224, 248, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The presumption is founded on the theory that “in a modern and efficient securities market, the market price of a stock incorporates all available public information. Therefore, any person who trades shares relies on the integrity of the market price.” No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp. 320 F.3d 920, 947 (9th Cir.2003) (citations omitted). “[T]he fraud-on-the-market theory is premised on the fact that a misrepresentation has affected the stock’s price incongruently to the stock’s true value. Only then is detrimental reliance presumed because a plaintiff traded stock relying on the integrity of the market price.” No. 84, 320 F.3d at 948 (citations and quotation omitted). The fraud-on-the-market presumption is rebuttable by “[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff.” Basic, 485 U.S. at 248, 108 S.Ct. 978. If the defendant can show that this link is severed as to any group of class plaintiffs, it would create in that group the necessity of showing actual reliance, and diminish the predominance of liability-related issues. The United States Supreme Court has also held, however, that it was inappropriate for a district court to delve into whether the statements at issue could have actually misinformed the market and changed the valuation of a security. Basic, 485 U.S. at 249 n. 29, 108 S.Ct. 978. “Proof of that sort is a matter for trial, throughout which the district court retains the authority to amend the certification order as may be appropriate.” Id. District courts in the Ninth Circuit have held that when plaintiffs plead a fraud-on-the-market theory, questions of whether misleading conduct occurred, and whether that conduct occurred with fraudulent intent, predominate over other questions. See, e.g., Freedman v. Louisiana-Pacific Corp., 922 F.Supp. 377, 399 (D.Or.1996); Unioil, 107 F.R.D. at 619, 622; Schaefer, 169 F.R.D. at 128, 131. Here, Plaintiffs have properly pleaded the fraud-on-the-market theory. The complaint alleges that Defendants made" }, { "docid": "16267614", "title": "", "text": "has integrity[;] ... it adjusts rapidly to reflect all new information.” Jonathan R. Macey & Geoffrey P. Miller, Good Finance, Bad Economics: An Analysis of the Fraudr-om-the-Market Theory, 42 Stan. L.Rev. 1059, 1060 (1990). Only in those circumstances, therefore, may a court presume reliance and avoid individualized inquiries. Although Basic clearly requires that a market be efficient in order for the fraud-on-the-market presumption of reliance to be invoked, 485 U.S. at 248 n. 27, 108 S.Ct. 978, the decision offers little guidance for determining whether a market is efficient. The Court does refer to “modern securities markets, literally involving millions of shares changing hands daily,” id. at 243, 108 S.Ct. 978, but that is obviously a general statement offered as a contrast to face-to-face transactions and is not meant as a necessary requirement for finding that a market is efficient. Of more relevance, but only of limited guidance, are the Court’s references to an “open and developed” market and an “impersonal, well-developed market.” See id. at 241, 247, 108 S.Ct. 978. Nonetheless, it is recognized that it is “[r]ivalrous competition among market professionals [that] drives securities prices to their efficient levels.” Macey & Miller, supra, at 1086; see also West v. Prudential Sec., Inc., 282 F.3d 935, 937 (7th Cir.2002) (“The theme of Basic and other fraud-on-the-market decisions is that public information reaches professional investors, whose evaluations of that information and trades quickly influence securities prices”); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1129 (7th Cir.1993) (“Competition among savvy investors leads to a price that impounds all available information, even knowledge that is difficult to articulate. We call a market ‘efficient’ because the price reflects a consensus about the value of the security being traded ... ”). Thus, “[t]he more thinly traded the stock, the less well the price reflects the latest pieces of information.” Eckstein, 8 F.3d at 1130. As a consequence, to determine whether a security trades on an efficient market, a court should consider factors such as, among others, whether the security is actively traded, the volume of trades, and the extent to which it is" }, { "docid": "15863281", "title": "", "text": "I disagree. The “fraud on the market” doctrine, endorsed by the Supreme Court in Basic, see Basic, 485 U.S. at 241-42, 108 S.Ct. 978, recognizes that in an open, efficient, and developed market, where millions of shares are traded daily, investors must rely on the market to perform a valuation process which incorporates all publicly available information, including misinformation. See id. at 241-47, 108 S.Ct. 978. Consequently, the reliance of individual plaintiffs on the integrity of a price in such a market, and implicitly the misinformation that contributed to that price, may be presumed.„ See id. at 247, 108 S.Ct. 978. See also Grossman, 120 F.3d at 1118 (recognizing the “fraud on the market” doctrine). In order to take advantage of the doctrine, however, a plaintiff must plead, and ultimately prove, that the market on which the security is traded is efficient. See Wiles, 223 F.3d at 1163 n. 2 (recognizing that the “fraud on the market doctrine,” and its corresponding presumption of reliance, only apply to efficient markets). See also Freeman v. Laventhol & Horwath, 915 F.2d 193, 198 (6th Cir. 1990) (the efficient market requirement is a necessary underpinning of the fraud-on-the-market theory, because “[a]n inefficient market, by definition, does not incorporate into its price all available information about the value of a security.”). Courts assessing the efficiency of markets consider: (1) whether the stock trades at a high weekly volume; (2) whether securities analysts follow and report on the stock; (3) whether the stock has market makers and arbitrageurs; (4) whether the company is eligible to file SEC Form S-3; and (5) whether there are empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price. See, e.g., Stat-Tech Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1345 (D.Colo.1997) (Stab-Tech); Cammer v. Bloom, 711 F.Supp. 1264, 1286-87 (D.N.J.1989). No bright-line rules exist as to how many factors must be plead before a plaintiff is entitled to the presumption of reliance. See Cammer, 711 F.Supp. at 1287 (“It is not logical to draw bright line tests ..." }, { "docid": "18874610", "title": "", "text": "stock is determined by the available material information regarding the company and its business. Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986) (citation omitted), cited in Basic, 485 U.S. at 241-42, 108 S.Ct. at 989. The fraud-on-the-market presumption is based on three factual premises. First, in a developed market, sophisticated financial professionals can generally be expected to read the publicly available information about a security. Second, their competing evaluations will affect the security’s price. Third, unsophisticated investors generally rely on a security’s market price as reflecting the security’s value. Thus, if disclosure documents contain material misrepresentations, the security’s price will be affected through market professionals, and investors, relying on the price, rely indirectly on the disclosure documents whether or not they have actually read them. The Supreme Court endorsed the fraud on the market theory in Basic. This Circuit has held that the fraud on the market presumption of reliance does not apply when securities are not traded on an efficient, market, as is the case with new issues. Freeman v. Laventhol & Horwath, 915 F.2d 193 (6th Cir.1990). Holding that the court will presume reliance only when it is logical to do so, the Freeman court pointed out that “[a]n inefficient market, by definition, does not incorporate into its price all the available information about the value of a security.” Id. at 198. The court then held that a primary market for newly issued municipal bonds is not an efficient market. In face-to-face transactions, reliance on a defendant’s failure to disclose material information may also be presumed where the defendant had a duty to disclose. Thus, reliance was presumed in Affiliated Ute Citizens v. United States, 406 U.S. 128, 152-54, 92 S.Ct. 1456, 1471-72, 81 L.Ed.2d 741 (1972). There the bank and its employees, who created a market in" } ]

[ { "docid": "9934129", "title": "", "text": "necessary to take the case out of the ordinary-police regulation of a state. Mere possession of an article injurious-to health would not render a person liable to a United States statute unless some constitutional basis for the statute gives the United States the right to regulate upon the subject. The Brolan Case, supra, disposes of the objection that the¡ only United States jurisdiction is -based upon the so-called presumption. See, also, U. S. v. Yee Fing (D. C.) 222 Fed. 154. As was said in the latter case, the defendant is dealing with something which he knows is under the ban of the law, in the use of which he will be committing a crime which can be punished under the United States law unless he can show clearly an innocent history of the article-which he is using and as to which he is made to undergo no hardship, if he be held in accordance with the laws which were in force at all times during the transaction. It might take slight evidence to rebut the presumption and to leave the matter one which could be disposed of only under the state jurisdiction. The federal jurisdiction is not .exclusive. As in the case of the White Slave Act (Act June 25, 1910, c. 395, 36 Stat. 825 [Comp. St. 1916, §§ 8812-8819]), the existence of some real basis for the application of intérstate commerce jurisdiction should be considered by those officers of the government on whom rest the responsibility for instituting prosecution. The cases should not be taken from the states and the jurisdiction of the United States made exclusive where Congress has not so legislated as to indicate that the jurisdiction of the United States is exclusive of that of the state. N. Y. Cent. R. Co. v. Winfield, 37 Sup. Ct. 546, 244 U. S. 147, 61 L. Ed. 1045, and So. Pac. Co. v. Jensen, 37 Sup. Ct. 524, 244 U. S. 205, 61 L. Ed. 1086, decided in the Supreme-Court of the United States in June, 1917. The present case is evidently on the border line," } ]

[ { "docid": "22712900", "title": "", "text": "the Fifth Amendment privilege protected such answers, United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, while in the cases involving-refusals to answer after immunity was conferred, the Court indicated that immunity in regard to a prosecution in the jurisdiction conducting the inquiry. satisfied the privilege. Brown v. Walker, 161 U. S. 591; Jack v. Kansas, 199 U. S. 372; Hale v. Henkel, 201 U. S. 43. Cf. United States v. Murdock, 284 U. S. 141. The decision in Ballmann that a witness in a federal grand jury proceeding could not be compelled to make disclosures incriminating under very similar federal and state criminal statutes was announced by members of the same Court and within a very short time of the decisions in Jack and Hale, holding that immunity under the laws of One sovereign was sufficient. The basis for these latter holdings, as well as Knapp v. Schweitzer, 357 U. S. 371, upholding a state contempt conviction for a refusal to answer after a grant of state immunity, was not a niggardly view of the privilege against self-incrimination but “the historic distribution of power as between Nation and States in our federal system.” 357 U. S. 371, at 375. As the concurring and dissenting members of the Court in Knapp pointed out, the dilemma posed to our federal system by federally incriminating testimony compelled in a state proceeding was not really necessary but for the prior decision in Feldman v. United States, 322 U. S. 487, which upheld the Federal Government’s use of incriminatory testimony compelled in a state proceeding. Although Feldman was questioned, no one suggested in Knapp that the solution to the problem lay in forbidding the State to ask questions incriminating under federal law. To answer that the underlying policy of the privilege subordinates the law enforcement function to the privilege of an individual will not do. For where there is only one government involved, be it state or federal, not only is the danger of prosecution more imminent and indeed the likely purpose of the investigation to facilitate prosecution" }, { "docid": "22712903", "title": "", "text": "the State’s need for the testimony on a case-by-case basis. Further, the scope of the immunity conferred wholly depends on the testimony given, a matter of con siderable difficulty to determine after, no less than before, the question is answered, the time when federal approval would be necessary, Heike v. United States, 227 U. S. 131; Lumber Products Assn. v. United States, 144 F. 2d 546 (C. A. 9th Cir.), and a matter whose determination requires intimate familiarity with both the nature and details of the investigation and the background of the witness. Finally, it is very doubtful that Congress would, if it had the power to, authorize one State to confer immunity on persons subject to prosecution under the criminal laws of another State. II. Neither the conflict between state and federal interests nor the consequent enthronement of federal agencies as the only law enforcement authorities with effective power to compel testimony is necessary to give full effect to a privilege against self-incrimination whose external reach embraces federal as well as state law. The approach need not and, in light of the above considerations, should not be in terms of the State’s power to compel the testimony rather than the use to which such testimony can be put. It is unquestioned that an immunity statute, to be valid, must be coextensive with the privilege which it displaces, but it need not be broader. Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591 ; Hale v. Henkel, 201 U. S. 43. If the compelled incriminating testimony in a state proceeding cannot be put to any use whatsoever by federal officials, quite obviously the witness’ privilege against self-incrimination is not infringed. For the privilege does not convey an absolute right to remain silent. It protects a witness from being compelled to furnish evidence that could result in his being subjected to a criminal sanction, Hoffman v. United States, 341 U. S. 479; Mason v. United States, 244 U. S. 362, if, but only if, after the disclosure the witness will be in greater danger of prosecution" }, { "docid": "22712901", "title": "", "text": "was not a niggardly view of the privilege against self-incrimination but “the historic distribution of power as between Nation and States in our federal system.” 357 U. S. 371, at 375. As the concurring and dissenting members of the Court in Knapp pointed out, the dilemma posed to our federal system by federally incriminating testimony compelled in a state proceeding was not really necessary but for the prior decision in Feldman v. United States, 322 U. S. 487, which upheld the Federal Government’s use of incriminatory testimony compelled in a state proceeding. Although Feldman was questioned, no one suggested in Knapp that the solution to the problem lay in forbidding the State to ask questions incriminating under federal law. To answer that the underlying policy of the privilege subordinates the law enforcement function to the privilege of an individual will not do. For where there is only one government involved, be it state or federal, not only is the danger of prosecution more imminent and indeed the likely purpose of the investigation to facilitate prosecution and conviction, but that authority has the choice of exchanging immunity for the needed testimony. To transform possible federal prosecution into a source of absolute protected silence on the part of a state witness would leave no such choice to the States. Only the Federal Government would retain such an option. Nor will it do to say that the Congress could reinstate state power by authorizing state officials to confer absolute immunity from federal prosecutions. Congress has established highly complicated procedures, requiring the approval of the Attorney General, before a limited group of federal officials may grant immunity from federal prosecutions. E. g., 18 U. S. C. § 3486, 18 U. S. C. § 1406. The decision to grant immunity is based upon the importance of the testimony to federal law enforcement interest, a matter within the competence of federal officials to assay. These procedures would create insurmountable obstacles if the requests for approval were to come from innumerable local officials of the 50 States. Obviously federal officials could not properly evaluate the extent of" }, { "docid": "22672494", "title": "", "text": "and perhaps impossible, the argument goes, to identify, by testimony or cross-examination, the subtle ways in which the compelled testimony may disadvantage a witness, especially in the jurisdiction granting the immunity. This argument presupposes that the statute’s pro hibition will prove impossible to enforce. The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom: “[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . . 18 U. S. C. § 6002. This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an “investigatory lead,” and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures. A person accorded this immunity under 18 U. S. C. § 6002, and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities. As stated in Murphy: “Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” 378 U. S., at 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. This is very substantial protection, commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute, which operates after a witness has given incriminatory testimony, affords the same protection" }, { "docid": "22712904", "title": "", "text": "approach need not and, in light of the above considerations, should not be in terms of the State’s power to compel the testimony rather than the use to which such testimony can be put. It is unquestioned that an immunity statute, to be valid, must be coextensive with the privilege which it displaces, but it need not be broader. Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591 ; Hale v. Henkel, 201 U. S. 43. If the compelled incriminating testimony in a state proceeding cannot be put to any use whatsoever by federal officials, quite obviously the witness’ privilege against self-incrimination is not infringed. For the privilege does not convey an absolute right to remain silent. It protects a witness from being compelled to furnish evidence that could result in his being subjected to a criminal sanction, Hoffman v. United States, 341 U. S. 479; Mason v. United States, 244 U. S. 362, if, but only if, after the disclosure the witness will be in greater danger of prosecution and conviction. Rogers v. United States, 340 U. S. 367; United States v. Gernie, 252 F. 2d 664 (C. A. 2d Cir.). When federal officials are barred not only from introducing the testimony into evidence in a federal prosecution but also from introducing any evidence derived from such testimony, the disclosure has in no way contributed to the danger or likelihood of a federal prosecution. This approach secures the protections of the privilege against self-incrimination for all defendants without impairing local law-enforcement and investigatory activities. It, of course, forecloses the use of state-compelled testimony in any manner by federal prosecutors, but the privilege in my view commands that the Federal Government should not have the benefit of compelled incriminatory testimony. Both the Federal Government and the witness are in exactly the same position as if the witness had remained silent. And state immunity statutes remain constitutional and state law enforcement agencies viable. It is argued that a rule only forbidding use of compelled testimony does not afford absolute protection against the possibility of a federal" }, { "docid": "22712893", "title": "", "text": "against any use of compelled testimony in any manner in other jurisdictions but also absolute immunity in these jurisdictions from any prosecution pertaining to any of the testimony given. The rule which the Court does not adopt finds only illusory support in a dictum of this Court and, as I shall show, affords no more protection against compelled incrimination than does the rule forbidding federal officials access to statements made in exchange for a grant of state immunity. But such a rule would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions, and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility iri our federal system. It would not only require widespread federal immunization from prosecution in federal investigatory proceedings of persons who violate state criminal laws, regardless of the wishes or needs of local law enforcement officials, but would also deny the States the power to obtain information necessary for state law enforcement and state legislation. That rule, read in conjunction with the holding in Malloy v. Hogan, ante, p. 1, that an assertion of the privilege is all but conclusive, would mean that testimony in state investigatory proceedings, and in trials also, is on a voluntary basis only. The Federal Government would become the only law enforcement agency with effective power to compel testimony in exchange for immunity from prosecution under federal and state law. These considerations warrant some elaboration. I. Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U. S. 273. Sueh testimony constitutes one of the Government’s primary sources of information. The privilege against self-incrimination, safeguarding a complex of significant values, represents a broad exception to governmental power to compel the testimony of the citizenry. The privilege can be claimed in any proceeding, be" }, { "docid": "22712914", "title": "", "text": "my view it is possible for a federal prosecution to be based on untainted evidence after a grant of federal immunity in exchange for testimony in a federal criminal investigation. Likewise it is possible that information gathered by a state government which has an important but wholly separate purpose in conducting the investigation and no interest in any federal prosecution will not in ,any manner be used in subsequent federal proceedings, at least “while this Court sits” to review invalid convictions. Panhandle Oil Co. v. Knox, 277 U. S. 218, at 223 (Holmes, J., dissenting). It is precisely this possibility of a prosecution based on untainted evidence that we must recognize. For if it is meaningful to say that the Federal Government may not use compelled testimony to convict a witness of a federal crime, then, of course, the Constitution permits the State to compel such testimony. “The real evil aimed at by the Fifth Amendment’s flat prohibition against the compulsion of self-incriminatory testimony was that thought to inhere in using a man’s compelled testimony to punish him.” Feldman v. United States, 322 U. S. 487, 500 (Black, J., dissenting). I believe the State may compel testimony incriminating under federal law, but the Federal Government may not use such testimony or its fruits in a federal criminal proceeding. Immunity must be as broad as, but not harmfully and wastefully broader than, the privilege against self-incrimination. The English rule is not clear. In United States of America v. Mc-Rae, L. R,., 3 Ch. App. 79 (1867), the case on which the majority primarily relies, the United States came into court as a party and sought to elicit from the defendant answers which would have subjected him to a forfeiture of property under the laws of the United States. Upholding the defendant’s refusal to answer, the Lord Chancellor pointed out that the “. .. Plaintiffs calling for an answer are the sovereign power by whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach.” Id., at 85. That" }, { "docid": "22672514", "title": "", "text": "Court, however, apparently believes that Counsel-man and its progeny were overruled sub silentio in Murphy v. Waterfront Comm’n, 378 U. S. 52. Murphy involved state witnesses, granted transactional immunity under state law, who refused to testify for fear of subsequent federal prosecution. We held that the testimony in question could be compelled, but that the Federal Government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution. Murphy overruled, not Counselman, but Feldman v. United States, 322 U. S. 487, which had held “that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.” Murphy v. Waterfront Comm’n, supra, at 77. But Counselman, as the Murphy Court recognized, “said nothing about the problem of incrimination under the law of another sovereign.” Id., at 72. That problem is one of federalism, as to require transactional immunity between jurisdictions might “deprive a state of the right to prosecute a violation of its criminal law on the basis of another state’s grant of immunity [a result which] would be gravely in derogation of its sovereignty and obstructive of its administration of justice.” United States ex rel. Catena v. Elias, 449 P. 2d 40, 44 (CA3 1971). Moreover, as Mr. Justice Brennan has pointed out, the threat of future prosecution “substantial when a single jurisdiction both compels incriminating testimony and brings a later prosecution, may fade when the jurisdiction bringing the prosecution differs from the jurisdiction that compelled the testimony. Concern over informal and undetected exchange of information is also correspondingly less when two different jurisdictions are involved.” Piccirillo v. New York, 400 U. S., at 568 (dissenting). None of these factors apply when the threat of prosecution is from the jurisdiction seeking to compel the testimony, which is the situation we faced in Counselman, and which we face today. The irrelevance of Murphy to such a situation was made clear in Albertson v. Subversive Activities Control Board, 382 U. S. 70, in which the Court struck down an immunity statute" }, { "docid": "22712897", "title": "", "text": "it be for the legislature to declare these combinations unlawful if the judicial power may close the door of access to every available source of information upon the subject?” Id., at 70. And only recently the Court declared that immunity statutes have “become part of our constitutional fabric .. . included ‘. . . in virtually all of the major regulatory enactments of the Federal Government,’ ” and “the States . . . have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use'of the compelled testimony.” Ullmann v. United States, 350 U. S. 422, 438. These state statutes play at least an equally important role in compelling testimony necessary for enforcement of state criminal laws. After all, the States still bear primary responsibility in this country for the administration of the criminal law; most crimes, particularly those for which immunity acts have proved most useful and necessary, are matters of local concern; federal preemption of areas of crime control traditionally reserved to the States has been relatively unknown and. this area has been said to be at the core of the continuing viability of the States in our federal system. See Abbate v. United States, 359 U. S. 187, 195; Screws v. United States, 325 U. S. 91, 109; United States v. Cruikshank, 92 U. S. 542, 553-554; United States v. Ah Hung, 243 F. 762 (D. C. E. D. N. Y.). Cf. 18 U. S. C. § 5001, 18 U. S. C. § 659. Whenever access to important testimony is barred by possible state prosecution, the State can, at its option, remove the impediment by a grant of immunity; but if the witness is faced with prosecution by the Federal Government, the State is wholly powerless to extend immunity from prosecution under federal law in order to compel the testimony. Almost invariably answers incriminating under state law can be claimed to be incriminating under federal law. Given the extensive sweep of a host of federal statutes, such as the income tax laws, securities regulation, laws regulating" }, { "docid": "22712894", "title": "", "text": "That rule, read in conjunction with the holding in Malloy v. Hogan, ante, p. 1, that an assertion of the privilege is all but conclusive, would mean that testimony in state investigatory proceedings, and in trials also, is on a voluntary basis only. The Federal Government would become the only law enforcement agency with effective power to compel testimony in exchange for immunity from prosecution under federal and state law. These considerations warrant some elaboration. I. Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U. S. 273. Sueh testimony constitutes one of the Government’s primary sources of information. The privilege against self-incrimination, safeguarding a complex of significant values, represents a broad exception to governmental power to compel the testimony of the citizenry. The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory, McCarthy v. Arndstein, 266 U. S. 34, 40; United States v. Saline Bank, 1 Pet. 100, and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used. Mason v. United States, 244 U. S. 362; Hoffman v. United States, 341 U. S. 479. Because of the importance of testimony, especially in the discovery of certain crimes for which evidence would not otherwise be available, and the breadth of the privilege, Congress has enacted over 40 immunity statutes and every State, without exception, has one or more immunity acts pertaining to certain offenses or legislative investigations. Such statutes have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, ex tortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering. This Court, in dealing with federal immunity" }, { "docid": "22712892", "title": "", "text": "self-incrimination is nullified “when a witness 'can be whipsawed into incriminating himself under both state and federal law even though’ the constitutional privilege against self-incrimination is applicable to each.” Ante, p. 55. Whether viewed as an exercise of this Court’s supervisory power over the conduct of federal law enforcement officials or a constitutional rule necessary for meaningful enforcement of the privilege, this holding requires that compelled incriminating testimony given in a state proceeding not be usecj in any manner by federal officials in connection with a federal criminal prosecution. Since these petitioners declined to answer in the belief that their very testimony as well as evidence derived from it could be used by federal authorities in a criminal prosecution against them, they should be afforded an opportunity to purge themselves of the civil contempt convictions by answering the questions. Cf. Raley v. Ohio, 360 U. S. 423. In reaching its result the Court does not accept the far-reaching and in my view wholly unnecessary constitu tional principle that the privilege requires not only complete protection against any use of compelled testimony in any manner in other jurisdictions but also absolute immunity in these jurisdictions from any prosecution pertaining to any of the testimony given. The rule which the Court does not adopt finds only illusory support in a dictum of this Court and, as I shall show, affords no more protection against compelled incrimination than does the rule forbidding federal officials access to statements made in exchange for a grant of state immunity. But such a rule would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions, and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility iri our federal system. It would not only require widespread federal immunization from prosecution in federal investigatory proceedings of persons who violate state criminal laws, regardless of the wishes or needs of local law enforcement officials, but would also deny the States the power to obtain information necessary for state law enforcement and state legislation." }, { "docid": "22712922", "title": "", "text": "prosecution, unaided by the state testimony. As I understand the rule announced today, albeit resting on premises which I think are unsound, it is a prohibition against the use of state-compelled incriminating evidence or the “fruits” directly attributable thereto in a federal prosecution. The question whether federally compelled incriminating testimony could be used in a state prosecution is not involved in this case and would, of course, present wholly different considerations. The power and corresponding duty are recognized in the Sixth Amendment’s commands that defendants be confronted with witnesses and that they have the right to subpoena witnesses on their own behalf. The duty was recognized by the first Congress in the Judiciary Act of 1789, which made provision for the compulsion of attendance of witnesses in the federal courts. 1 Stat. 73, 88 (1789). See also Lilienthal, The Power of Governmental Agencies to Compel Testimony, 39 Harv. L. Rev. 694-695 (1926); 8 Wigmore, Evidence, §§2190-2193 (McNaughton rev., 1961). For a listing of Federal Witness Immunity Acts see Comment, 72 Yale L. J. 1568, 1611-1612; the state acts may be found in 8 Wigmore, Evidence, §2281, n. 11 (McNaughton rev., 1961). See also Butkin v. United States, 343 U. S. 130, 139-147 (Black, J., dissenting). The Senate Crime Committee stated in its third interim report: “Any program for controlling organized crime must take into account the fundamental nature of our governmental system. The enforcement of the criminal law is primarily a State and local responsibility.” S. Rep. No. 307, 82d Cong., 1st Sess., 5 (1951). Attorney General Mitchell commented: “Experience has shown that when Congress enacts criminal legislation of this type [dealing with local crime] the tendency is for the State authorities to cease their efforts toward punishing the offenders and to leave it to the Federal authorities and the Federal Courts. That has been the experience under the Dyer Act.” 72 Cong. Rec. 6214 (1930). National enactments which touch upon these areas are not designed directly to suppress activities illegal under state law but to assist state enforcement agencies in the administration of their own statutes. See Int. Rev." }, { "docid": "22712902", "title": "", "text": "and conviction, but that authority has the choice of exchanging immunity for the needed testimony. To transform possible federal prosecution into a source of absolute protected silence on the part of a state witness would leave no such choice to the States. Only the Federal Government would retain such an option. Nor will it do to say that the Congress could reinstate state power by authorizing state officials to confer absolute immunity from federal prosecutions. Congress has established highly complicated procedures, requiring the approval of the Attorney General, before a limited group of federal officials may grant immunity from federal prosecutions. E. g., 18 U. S. C. § 3486, 18 U. S. C. § 1406. The decision to grant immunity is based upon the importance of the testimony to federal law enforcement interest, a matter within the competence of federal officials to assay. These procedures would create insurmountable obstacles if the requests for approval were to come from innumerable local officials of the 50 States. Obviously federal officials could not properly evaluate the extent of the State’s need for the testimony on a case-by-case basis. Further, the scope of the immunity conferred wholly depends on the testimony given, a matter of con siderable difficulty to determine after, no less than before, the question is answered, the time when federal approval would be necessary, Heike v. United States, 227 U. S. 131; Lumber Products Assn. v. United States, 144 F. 2d 546 (C. A. 9th Cir.), and a matter whose determination requires intimate familiarity with both the nature and details of the investigation and the background of the witness. Finally, it is very doubtful that Congress would, if it had the power to, authorize one State to confer immunity on persons subject to prosecution under the criminal laws of another State. II. Neither the conflict between state and federal interests nor the consequent enthronement of federal agencies as the only law enforcement authorities with effective power to compel testimony is necessary to give full effect to a privilege against self-incrimination whose external reach embraces federal as well as state law. The" }, { "docid": "22672480", "title": "", "text": "more such statutes. The commentators, and this Court on several occasions, have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, 350 U. S. 422 (1956), such statutes have “become part of our constitutional fabric.” Id., at 438. II Petitioners contend, first, that the Fifth Amendment's privilege against compulsory self-incrimination, which is that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself,\" deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U. S. 591 (1896), and Ullmann v. United States, supra, decisions that uphold the constitutionality of immunity statutes. We find no merit to this contention and reaffirm the decisions in Brown and Ullmann. III Petitioners' second contention is that the scope of immunity provided by the federal witness immunity statute, 18 U. S. C. § 6002, is not coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, and therefore is not sufficient to supplant the privilege and compel testimony over a claim of the privilege. The statute provides that when a witness is compelled by district court order to testify over a claim of the privilege: “the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 18 U. S. C. § 6002. The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity" }, { "docid": "22712876", "title": "", "text": "Canada, Australia and India. See Grant, Federalism and Self-Incrimination: Common Law and British Empire Comparisons, 5 U. C. L. A. L. Rev. 1 (1958). Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. MR. Justice Black concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the reasons stated in Feldman v. United States, 322 U. S. 487, 494 (dissenting opinion), as well as Adamson v. California, 332 U. S. 46, 68 (dissenting opinion); Speiser v. Randall, 357 U. S. 513, 529 (concurring opinion); Bartkus v. Illinois, 359 U. S. 121, 150 (dissenting opinion); and Abbate v. United States, 359 U. S. 187, 201 (dissenting opinion). Mr. Justice Harlan, whom Mr. Justice Clark joins, concurring in the judgment. Unless I wholly misapprehend the Court’s opinion, its holding that testimony compelled in a state proceeding over a witness’ claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U. S. 487, is overruled. I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested also on a refusal to exercise this Court’s “supervisory power” over the administration of justice in federal courts, I think that it can no longer be considered good law, in light of this Court’s subsequent decision in Elkins v. United States, 364 U. S. 206. In Elkins, this Court, exercising its supervisory power, did away with the “silver platter” doctrine and prohibited the use of evidence unconstitutionally seized by state authorities in a federal criminal trial involving the person suffering such a seizure. I believe that a similar supervisory rule of exclusion should follow in a case of" }, { "docid": "22712898", "title": "", "text": "the States has been relatively unknown and. this area has been said to be at the core of the continuing viability of the States in our federal system. See Abbate v. United States, 359 U. S. 187, 195; Screws v. United States, 325 U. S. 91, 109; United States v. Cruikshank, 92 U. S. 542, 553-554; United States v. Ah Hung, 243 F. 762 (D. C. E. D. N. Y.). Cf. 18 U. S. C. § 5001, 18 U. S. C. § 659. Whenever access to important testimony is barred by possible state prosecution, the State can, at its option, remove the impediment by a grant of immunity; but if the witness is faced with prosecution by the Federal Government, the State is wholly powerless to extend immunity from prosecution under federal law in order to compel the testimony. Almost invariably answers incriminating under state law can be claimed to be incriminating under federal law. Given the extensive sweep of a host of federal statutes, such as the income tax laws, securities regulation, laws regulating use of the mails and other communication media for an illegal purpose, and regulating fraudulent trade practices, and given the very limited discretion, if any, in the trial judge to scrutinize the witness’ claim of privilege, Mattoy v. Hogan, supra, investigations conducted by the State into matters' of corruption and misconduct will obviously be thwarted if immunity from prosecution under federal law was a constitutionally required condition to testimonial compulsion in state proceedings. Wherever the witness, for reasons known only to him, wished not to respond to orderly inquiry, the flow of information to the State would be wholly impeded. Every witness would be free to block vitally important state proceedings. It is not without significance that there were two ostensibly inconsistent lines of cases in this Court regarding the external reach of the privileges in respect to the laws of another jurisdiction. In the cases involving refusals to answer questions in a federal grand jury or discovery proceedings on the ground of incrimination under state law, absent any immunity statute, the Court suggested that" }, { "docid": "22712825", "title": "", "text": "Mr. Justice Goldberg delivered the opinion of the Court. We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, ante, p. 1. This case presents a related issue: whether one jurisdiction within our federal structure may compel a witness, whom it has immunized from prosecution under its laws, to give testimony which might then be used to convict him of a crime against another such jurisdiction. Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminate them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were thereupon held in civil and criminal contempt of court. The New Jersey Supreme Court reversed the criminal contempt conviction on procedural grounds but, relying on this Court’s decisions in Knapp v. Schweitzer, 357 U. S. 371; Feldman v. United States, 322 U. S. 487; and United States v. Murdock, 284 U. S. 141, affirmed the civil contempt judgments on the merits. The court held that a State may constitutionally compel a witness to give testimony which might be used in a federal prosecution against him. 39 N. J. 436, 452-458, 189 A. 2d 36, 46-49. Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U. S. 547, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must" }, { "docid": "22712899", "title": "", "text": "use of the mails and other communication media for an illegal purpose, and regulating fraudulent trade practices, and given the very limited discretion, if any, in the trial judge to scrutinize the witness’ claim of privilege, Mattoy v. Hogan, supra, investigations conducted by the State into matters' of corruption and misconduct will obviously be thwarted if immunity from prosecution under federal law was a constitutionally required condition to testimonial compulsion in state proceedings. Wherever the witness, for reasons known only to him, wished not to respond to orderly inquiry, the flow of information to the State would be wholly impeded. Every witness would be free to block vitally important state proceedings. It is not without significance that there were two ostensibly inconsistent lines of cases in this Court regarding the external reach of the privileges in respect to the laws of another jurisdiction. In the cases involving refusals to answer questions in a federal grand jury or discovery proceedings on the ground of incrimination under state law, absent any immunity statute, the Court suggested that the Fifth Amendment privilege protected such answers, United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, while in the cases involving-refusals to answer after immunity was conferred, the Court indicated that immunity in regard to a prosecution in the jurisdiction conducting the inquiry. satisfied the privilege. Brown v. Walker, 161 U. S. 591; Jack v. Kansas, 199 U. S. 372; Hale v. Henkel, 201 U. S. 43. Cf. United States v. Murdock, 284 U. S. 141. The decision in Ballmann that a witness in a federal grand jury proceeding could not be compelled to make disclosures incriminating under very similar federal and state criminal statutes was announced by members of the same Court and within a very short time of the decisions in Jack and Hale, holding that immunity under the laws of One sovereign was sufficient. The basis for these latter holdings, as well as Knapp v. Schweitzer, 357 U. S. 371, upholding a state contempt conviction for a refusal to answer after a grant of state immunity," }, { "docid": "22712896", "title": "", "text": "acts, has on numerous occasions characterized such statutes as absolutely essential to the enforcement of various federal regulatory acts. In Brown v. Walker, 161 U. S. 591, the case in which the Court first upheld a congressional immunity act over objection that the witness’ right to remain silent was inviolate, the Court said: “[If] witnesses standing in Brown’s position were at liberty to set up an immunity from testifying, the enforcement of the Interstate Commerce law or other analogous acts, wherein it is for the interest of both parties to conceal their misdoings, would become impossible.” 161 U. S. 591, at 610. Again in Hale v. Henkel, 201 U. S. 43, the Court noted the highly significant role played by immunity acts in the enforcement of federal legislation: “As the combination or conspiracies provided against by the Sherman Anti Trust Act can ordinarily be proved only by the testimony of parties thereto, in the person of their agents or employés, the privilege claimed would practically nullify the whole act of Congress. Of what use would it be for the legislature to declare these combinations unlawful if the judicial power may close the door of access to every available source of information upon the subject?” Id., at 70. And only recently the Court declared that immunity statutes have “become part of our constitutional fabric .. . included ‘. . . in virtually all of the major regulatory enactments of the Federal Government,’ ” and “the States . . . have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use'of the compelled testimony.” Ullmann v. United States, 350 U. S. 422, 438. These state statutes play at least an equally important role in compelling testimony necessary for enforcement of state criminal laws. After all, the States still bear primary responsibility in this country for the administration of the criminal law; most crimes, particularly those for which immunity acts have proved most useful and necessary, are matters of local concern; federal preemption of areas of crime control traditionally reserved to" }, { "docid": "23120948", "title": "", "text": "least in a federal prosecution. The untenability of the premises upon which the Court relied in Feldman has been clearly revealed in a series of penetrating law review articles by Professor J. A. C. Grant. Immunity from Compulsory Self-Incrimination in a Federal System of Government, 9 Temple L. Q. 57, 194; Federalism and Self-Incrimination, 4 U. C. L. A. Law Rev. 549, 5 id., 1. Feldman places a witness who is called before a state agency and ordered to testify in a desperate position; he must either remain silent and risk state imprisonment for contempt or con fess himself into a federal penitentiary. See Marcello v. United States, 196 F. 2d 437. Indeed things have now reached the point, as the result of United States v. Murdock, 284 U. S. 141, Feldman, and the present case, where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. Cf. Irvine v. California, 347 U. S. 128; United States v. Kahriger, 345 U. S. 22. I cannot agree that we must accept this intolerable state of affairs as a necessary part of our federal system of government. In Michigan, at least, the state constitution has been interpreted as preventing state officers from compelling disclosure of facts which might tend to incriminate the witness under federal law, even though he has been granted full immunity from state prosecution. People v. DenUyl, 318 Mich. 645, 29 N. W. 2d 284. Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So. 2d 894. Contrast Bram v. United States, 168 U. S. 532, where this Court ruled that an involuntary confession could not be used in a federal prosecution even though it was procured by officers of a foreign nation outside the United States. And see Ashcraft v. Tennessee, 322 U. S. 143, at 155, where we declared that \"The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.” It seems" } ]

[ { "docid": "19702243", "title": "", "text": "in promoting multiple uses of the federal lands in question. With respect to what constitutes an appropriate AML, as already indicated BLM officials are also afforded significant discretion with respect to the wild horse and burro populations they manage. See 16 U.S.C. § 1333(b). According to the BLM, the AMLs in question here have been developed over the course of many years. Moreover, and in any event, the BLM has discretion in determining whether an excess population in fact exists, since the Secretary can make that determination “on the basis of whatever information he has at the time of his decision.” Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1318 (D.C.Cir.1982). The Bureau’s determinations in that regard are entitled to deference. Although Plaintiffs contend that population levels under the Act should be determined solely with reference to a “thriving natural ecological balance” (“TNEB”), that argument appears misplaced since the statute, as stated above, specifically equates excess animals with AML levels. See 16 U.S.C. § 1333(b)(2) (if overpopulation exists, the BLM “must immediately remove excess animals from the range so as to achieve appropriate management levels”). AMLs are determined though revisions to the applicable Resource Management Plan, or RMP. As the Gather EA notes, AMLs are established in order to ensure both a thriving natural ecological balance and a multiple use relationship in the HMA. AR 15448. The BLM works to achieve AML guidelines on the range in order to achieve a TNEB. AML is a vehicle used to move towards a TNEB, and a trigger by which the BLM is alerted to address population imbalance. Despite Plaintiffs’ argument to the contrary, TNEB represents an overall objective rather than the means to accomplish it. [17] That means, in the form of AML (as well as other factors the BLM has the discretion to consider in determining overpopulation) has already been determined and, as indicated above, no challenge to the operative RMP and its AML determination is presently being made. Here, as discussed above, the wild horse population in the Twin Peaks HMA well exceeded the high end of the AML," } ]

[ { "docid": "21109786", "title": "", "text": "to achieve AMLs by removing “excess animals” or by taking some other action. Id. “[E]xcess animals” are defined, in relevant part, as those horses “which must be removed from an -area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship! in [an] area.” 16 U.S.C. § 1332(f). On'the one hand, BLM must manage each component resource (including wild horses) “at the minimal feasible level.” Id. § 1333(a). Yet when BLM concludes, “on the basis of all information currently available to [it], that an overpopulation exists on .a given area of the public lands and that action is necessary to remove excess animals,” it must “immediately remove excess animals from the range so as to achieve [AMLs],” “restore a thriving ecological balance,” and “protect the range from the deterioration associated with overpopulation.” Id. § 1333(b)(2). , In 2007, BLM determined that the West Douglas' HA habitat could not support a self-sustaining population' of wild horses over the long term, and so it declared all wild horses in that area to be “excess animals” subject to immediate removal under the Act. 2015 West Douglas HA EA, App. C at 30. The scheduled gather of up to 167 horses in and around the West Douglas HA would partially implement that decision. Plaintiffs argue that BLM is statutorily prohibited from declaring all West Douglas HA horses “excess” and thus immediately removable. Pis,’ Mot. Prelim. Inj. 19-20] After all, the Wild Horses Act exhorts BLM to consider wild horses an “integral” resource in the “area” where they were found in' 1971, and to protect them from “capture, branding, harassment, or death.” 16 U.S.C. § 1331. According to Plaintiffs, transferring an entire herd from its historic environs would “forever destroy[ ]” Congress’s contemplated ecological balance on the public lands. Pis,’ Mot. Prelim. Inj. 20. But BLM’s early implementation of the Wild Horses Act strongly undercuts Plaintiffs’ contention that BLM has proposed to eliminate an entire group of wild horses from the “area” they inhabited in 1971. After BLM first inventoried the White River Resource Area in 1974 and formulated a land-use" }, { "docid": "2758025", "title": "", "text": "and burros from “capture, branding, harassment or death,” § 1331, the BLM is required to remove wild horses and burros from a given area of the public lands when an overpopulation exists. In removing “excess animals,” the Act instructs the BLM to take action in the following order and priority, until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation: (A) The Secretary shall order old, sick, or lame animals to be destroyed in the most humane manner possible; (B) The Secretary shall cause such number of additional excess wild free-roaming horses and burros to be humanely captured and removed for private maintenance and care for which he determines an adoption demand exists (C) The Secretary shall cause additional excess wild free-roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible. § 1333(b)(2) (emphasis added). Plaintiffs make five arguments why the BLM violated the Act by implementing the proposed gather, but none of these arguments prevail. First, Plaintiffs claim the BLM failed to determine, before the gather, that there were “excess” wild horses and burros on the Twin Peaks HMA. However, as earlier noted, the BLM had set AMLs for wild horses and burros on the HMA through the 2008 Eagle Lake Resource Management Plan at 448-758 and 72-116, respectively, and determined, prior to the gather, that these AMLs had been vastly exceeded. In the EA, the BLM specifically found that there were 1,855 excess wild horses and 210 excess burros within the HMA. Given the undisputed fact that the wild horse and burro populations greatly-exceeded their respective AMLs at the time of the gather, and the carefully-documented concerns about the deterioration of riparian areas and cultural sites caused by overpopulation, as well as the likelihood of insufficient forage to sustain the growing herd, the BLM properly decided action was necessary to restore the AMLs. Plaintiffs claim that, to find that there were “excess" }, { "docid": "2758026", "title": "", "text": "why the BLM violated the Act by implementing the proposed gather, but none of these arguments prevail. First, Plaintiffs claim the BLM failed to determine, before the gather, that there were “excess” wild horses and burros on the Twin Peaks HMA. However, as earlier noted, the BLM had set AMLs for wild horses and burros on the HMA through the 2008 Eagle Lake Resource Management Plan at 448-758 and 72-116, respectively, and determined, prior to the gather, that these AMLs had been vastly exceeded. In the EA, the BLM specifically found that there were 1,855 excess wild horses and 210 excess burros within the HMA. Given the undisputed fact that the wild horse and burro populations greatly-exceeded their respective AMLs at the time of the gather, and the carefully-documented concerns about the deterioration of riparian areas and cultural sites caused by overpopulation, as well as the likelihood of insufficient forage to sustain the growing herd, the BLM properly decided action was necessary to restore the AMLs. Plaintiffs claim that, to find that there were “excess animals,” the BLM was required to determine that there was not a “thriving natural ecological balance” on the HMA due to the presence of wild horses and burros at the time of the gather. Plaintiffs cite 16 U.S.C. § 1332(f)(2), which defines “excess animals” as those animals which “must be removed from an area in order to preserve and maintain a thriving natural ecological balance....” This argument fails. Preservation efforts can hardly require prior destruction of what is to be preserved. Simply because removal is required when necessary to “preserve and maintain” such a “thriving natural ecological balance” does not mean that removal can occur only when there is a showing that such a balance no longer exists. Rather, the use of the phrase “preserve and maintain” in the definition of “excess animals” suggests that the BLM may determine removal is necessary to ensure that the current thriving natural ecological balance does not deteriorate in the future. Additionally, as the district court held, the statute determines “excess animals” through the use of AML levels. In" }, { "docid": "20404148", "title": "", "text": "motion, defendants represented that BLM has periodically conducted round-ups in Nevada, fulfilling its obligations under the Act to remove excess horses in order to maintain a thriving natural ecological balance. The roundups have not historically been detrimental to the horses. Plaintiffs assert that in proposing to conduct the instant round-up, BLM violated the Act in three ways: (1) by failing to make a determination that there were “excess” wild horses before deciding to remove them; (2) by failing to manage the HMA “principally” for wild horses and burros; and (3) by failing to manage the wild horses at the “minimal feasible level.” i. Failure to Make Excess Horse Determination “Excess” wild horses are those that “must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” Id. § 1332(f). The BLM is required to maintain an inventory of wild horses on public lands in order to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population). Id. § 1333(b)(1). As stated above, whenever the BLM determines that an overpopulation exists, it must “immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. § 1333(b)(2). Pursuant to this statutory directive, BLM establishes appropriate management levels (“AMLs”) of wild horses on the ranges. Id. § 1333(b)(1). AMLs are defined by BLM as “the number of wild horses that can be sustained within a designated HMA which achieves and maintains a thriving natural ecological balance in keeping with the multiple-use management concept for the area.” (EA 4). Range AMLs may be established in a number of ways, including through the preparation of “resource management plans” (“RMPs”). (See PI. Mot. Ex. 4 at 46); (infra sec. I.A.Ü). AMLs are generally not established or" }, { "docid": "2758023", "title": "", "text": "agency’s decision is arbitrary and capricious if it fails to consider important aspects of the issue before it, if it supports its decisions with explanations contrary to the evidence, or if its decision is either inherently implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005). Analysis A. Plaintiffs’ Wild Free-Roaming Horses and Burros Act claims The Act directs the Secretary of the Interior (“Secretary”) to “protect and manage wild free-roaming horses and burros as components of the public lands.... ” 16 U.S.C. § 1333(a). The BLM, as the designate of the Secretary, “shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” Id. The BLM must also “maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” § 1383(b)(1). As Congress explained: The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of wild free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels). Id. Congress provided that “[a]ll management activities shall be at the minimal feasible level ....”§ 1333(a). Yet the Act also provides that if the current population inventory reveals that “an overpopulation exists on a given area of the public lands,” and if the BLM determines that “action is necessary to remove excess animals,” the BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.” § 1333(b)(2). The Act defines “excess animals” as “wild free-roaming horses or burros ... which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” § 1332(f). Thus, while the overarching purpose of the Act is to protect wild horses" }, { "docid": "10889842", "title": "", "text": "through the Bureau of Land Management and the Secretary of Agriculture in connection with public lands administered by him through the Forest Service.” Id. § 1332(a). “[W]ild free-roaming horses and burros” are defined as “all unbranded and unclaimed horses and burros on public lands of the United States,” id. § 1332(b); “public lands” are “any lands administered by the Secretary of the Interior through the Bureau of Land Management or by the Secretary of Agriculture through the Forest Service.” Id. § 1332(e). The management and protection duties specifically assigned to the Secretary by the Act consist of (1) prosecuting private persons who harass, capture, or kill wild horses, see 16 U.S.C. § 1338(a); (2) removing any wild horses that wander onto privately owned lands from public land, see id. § 1334; and (3) monitoring and regulating the population levels of wild horses on public lands. See id. § 1333(a)-(b). BLM’s proposed gather plan for the Calico Mountains Complex falls into the latter category of responsibilities. By mandate of the Wild Horse Act, BLM must “maintain a current inventory” of wild horses on the land the agency administers and, based on that inventory, determine “whether and where an overpopulation exists and whether action should be taken to remove excess animals.” Id. § 1333(b). “[EJxcess animals” are those horses “which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” Id. § 1332(f). To aid its ability to determine whether a given number of horses constitutes an “overpopulation” containing “excess animals,” BLM is instructed to set “appropriate management levels of wild free-roaming horses” for the lands the agency administers. Id. § 1333(b)(1). BLM must “determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” 16 U.S.C. § 1333(b)(1). “Where [BLM] determines ... that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [the agency] shall immediately remove excess animals from" }, { "docid": "21109789", "title": "", "text": "continue to manage wild horses. At the very least, BLM’s decision to interpret the statutory term “the area” by reference to the earliest geographic classifications it used after the Act’s passage is a permissible reading of the statutory text. It is therefore entitled to controlling deference under Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Even if Plaintiffs were correct that the West Douglas HA is the appropriate analytical unit, there is no inherent reason why BLM could not have declared all wild horses in that area to be “excess animals” subject to immediate removal. BLM is charged with maintaining “a thriving natural ecological balance on the public lands,” an emphatically • “multiple-use” mission. 16 U.S.C. §§ 1332(c), 1333(a). “Excess” animals are those that “must be removed” in order to preserve such a harmonious balance. Id. § 1332(f). The Wild Horses Act does not define “appropriate management level,” instead authorizing BLM to “determine” both the AMLs and how they should be achieved. Id. § 1333(b)(1). Moreover, nothing in the Act forbids BLM from concluding that the depletion of other resources has rendered an entire herd area unsuitable for equine habitation. See Dahl v, Clark, 600 F.Supp. 585, 595 (D.Nev.1984) (observing that “[t]he benchmark test is thriving ecological balance,” not “any specific numbers of animals”); Am. Horse Prot. Ass’n.v. Frizzell, 403 F.Supp. 1206, 1217 (D.Nev.1975) (noting that BLM is “given a high degree of discretionary authority for the purposes of protection, management, and control of wild free-roaming horses”) (quoting 1971 U.S.C.C.A.N. 2159, 2160). BLM’s conclusion that the Wild Horses Act permits it to declare all West Douglas HA 'horses “excess” — as long as it does so in a procedurally proper manner — is therefore entitled to Chevron deference. As a result, Plaintiffs would not likely prevail on the merits of this claim. 2. Sufficiency of the Data Underlying BLM’s West Douglas HA and East Douglas HMA “Excéss” Determinations Plaintiffs further contest the adequacy of BLM’s decisionmaking process in declaring all West Douglas HA horses, and some East Douglas" }, { "docid": "2758034", "title": "", "text": "determination that the overpopulation of wild horses and burros threatened the natural ecological balance on the HMA, it reasonably determined that the gather was necessary to restore the AMLs and thereby protect the HMA’s natural ecological balance. Moreover, the BLM had simultaneous duties not only “to achieve and maintain a thriving natural ecological balance” on the HMA, § 1333(a), but also to remove excess animals “immediately” when the BLM determined “that an overpopulation exist[ed].” § 1333(b)(2). Congress could not have intended that the “minimal” management requirement would force the BLM to ignore these other statutory mandates. Given that this court must defer to the BLM’s expertise under the APA, see Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994), we hold that the BLM reasonably interpreted its statutory directive that management be at a “minimal feasible level” when it decided to implement the Gather Plan in light of the overpopulation at the time of the gather and the fact that inaction would have led only to further detrimental population increases. Fifth, Plaintiffs incorrectly argue that the storage of unadoptable excess wild horses at long-term holding facilities owned by private contractors violated the Act. While the Act does prohibit the BLM from relocating wild horses and burros “to areas of the public lands where they do not presently exist,” the Act does not prohibit such relocation to private lands. 16 U.S.C. § 1339 (emphasis added). Because nothing in the Act suggests that Congress intended to bar the relocation of unadoptable horses to private lands for longterm holding, we decline to read such a prohibition into the Act. Plaintiffs also contend that the privately-owned holding facilities housing excess animals are “public lands” because the Act defines “public lands” as “any lands administered by the Secretary of the Interior through [the BLM].” 16 U.S.C. § 1332(e) (emphasis added). Plaintiffs claim the BLM “administers” these facilities by exercising oversight over the lands, thereby converting the facilities into “public lands” to which excess animals may not be transferred. This argument fails. To “administer” means “to manage or conduct.” Black’s Law Dictionary 65" }, { "docid": "19702235", "title": "", "text": "American Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C.Cir.1982) (quoting H.R. Rep No. 95-1122, at 23 (1978j)); see also Blake v. Babbitt, 837 F.Supp. 458, 459 (D.D.C.1993) (“[ejxcess numbers of horses and burros pose a threat to wildlife, livestock, the improvement of range conditions, and ultimately [the horses themselves]”) (citation omitted). Accordingly, in 1978, Congress amended the Act to provide BLM with greater authority and discretion to manage and remove excess horses from the range-land. Id. Excess animals are defined as animals “which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area” as well as horses that have been removed from an area pursuant to applicable law. 16 U.S.C. § 1333(b)(2). To this end, the 1978 Amendments require that the BLM “maintain a current inventory of the animals”. Id. at § 1333(b). As Congress explained, “The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population).” Id. (emphasis added). Although “all management activities shall be at the minimal feasible level,” the Act goes on to unequivocally provide that if the current population inventory for an HMA reveals that overpopulation exists, and if the BLM determines that “action is necessary to remove excess animals,” it “shall immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. at § 1333(b)(2). In its Watt decision, the District of Columbia Circuit recognizes the importance of permitting the BLM to quickly act in order to address overpopulation issues, based on whatever information to that effect becomes available: “The most important 1978 amendment, for our purposes, is section 1333(b)(2). That section addresses in detail the information upon which BLM may rest its determination that" }, { "docid": "2758028", "title": "", "text": "Defense of Animals v. U.S. Dep’t of Interior, 909 F.Supp.2d 1178, 1192 (E.D.Cal.2012); 16 U.S.C. § 1333(b)(2) (if “an overpopulation exists,” and if the BLM determines that “action is necessary to remove excess animals,” the BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.”) (emphasis added). Although the statute also provides that “[s]uch action shall be taken ... until all excess animals have been removed so as to restore a thriving natural ecological balance,” the most logical reading of those two phrases together is that the BLM must achieve a “thriving natural ecological balance” by maintaining the relevant AMLs. § 1333(b)(2). In this way, “AML is a vehicle used to move towards a [thriving natu ral ecological balance], and a trigger by which [] the BLM is alerted to address population imbalance.” In Defense of Animals, 909 F.Supp.2d at 1192; see also Am. Horse Protection Ass’n, Inc. v. Watt, 694 F.2d 1310, 1318 (D.C.Cir.1982) (The Act “directs that horses ‘shall’ be removed ‘immediately’ once the Secretary determines, on the basis of whatever information he has at the time of his decision, that an overpopulation exists.”) (emphasis omitted). Thus, the BLM correctly relied on the AMLs to decide that there were excess wild horses and burros on the I MA, and Plaintiffs’ assertion that a “thriving natural ecological balance” was being maintained on the Twin Peaks I MA before the gather is irrelevant. Second, Plaintiffs contend the BLM violated the “order and priority” provision of the Act, 16 U.S.C. § 1333(b)(2), by failing to identify and euthanize the “old, sick, or lame” animals on the HMA before “capturing” or “removing” the adoptable horses and burros. The BLM responds that the term “remove” in § 1333(b)(2) should be interpreted to refer to the permanent removal of animals from the HMA, and not the temporary gathering of animals on the HMA to determine which animals should be euthanized and which animals should be made available for adoption. The BLM therefore claims that “the Gather Plan’s temporary gathering of animals on the [HMA] is not itself a" }, { "docid": "21109785", "title": "", "text": "Plaintiffs emphasize, Congress expressed its desire — in the Act’s “Declaration of Policy” — that wild horses be “protected from capture, brand ing, harassment, or death” and also “be considered in the area where presently found [i.e., in 1971], as an integral part of the natural system of the public lands.” 16 U.S.C] § 1331. But horses are only one ingredient of the public lands’ ecological makeup. Congress amended the Wild Horses Act,in 1978 to reflect this fact — as the D.C. Circuit has explained, “[t]he main thrust of [those] amendments is to cut back on the protection thé Act affords wild horses, and to reemphasize other uses of the natural resources wild horses consume.” Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C.Cir.1982). BLM must “maintain a current inventory” of wild horses in order to determine an AML. for them — essentially, the most sensible population range for a given resource area. 16 U.S.C. § 1333(b)(1). The inventory is designed to help BLM decide “whether and where an overpopulation exists” and whether to achieve AMLs by removing “excess animals” or by taking some other action. Id. “[E]xcess animals” are defined, in relevant part, as those horses “which must be removed from an -area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship! in [an] area.” 16 U.S.C. § 1332(f). On'the one hand, BLM must manage each component resource (including wild horses) “at the minimal feasible level.” Id. § 1333(a). Yet when BLM concludes, “on the basis of all information currently available to [it], that an overpopulation exists on .a given area of the public lands and that action is necessary to remove excess animals,” it must “immediately remove excess animals from the range so as to achieve [AMLs],” “restore a thriving ecological balance,” and “protect the range from the deterioration associated with overpopulation.” Id. § 1333(b)(2). , In 2007, BLM determined that the West Douglas' HA habitat could not support a self-sustaining population' of wild horses over the long term, and so it declared all wild horses in that area to be" }, { "docid": "20404155", "title": "", "text": "at 34). A failure of the BLM to intervene, thus, would be a failure to maintain a thriving natural ecological balance within the range. “[T]he test as to appropriate wild horse population levels is whether such levels will achieve and maintain a thriving natural ecological balance on the public lands.” Dahl v. Clark, 600 F.Supp. 585, 595 (D.Nev.1984). Although AML is defined by reference to a thriving natural ecological balance and thus explicitly incorporates this standard, BLM’s Wild Horse and Burro Management Handbook states: “Justifying a removal [of horses] based on nothing more than the established AML is not acceptable.” (PI. Mot. Ex. 4 at 47). Even so, two courts have upheld excess horse determinations based primarily on the AML. See In Defense of Animals v. U.S. Dep’t of the Interior, 737 F.Supp.2d at 1133-34; Cloud Found., Inc. v. Kempthorne, 2008 WL 2794741, at *1 (D.Mont. 2008). In the case at bar, the court does not need to determine that reliance on the AML is sufficient, however. A review of the EA indicates that BLM based its excess horse determination on both the AMLs as well as other evidence indicating that wild horses were degrading the range habitat. Specifically, the EA cites data showing moderate to heavy utilization of forage by wild horses and heavy to severe use of riparian areas. (EA 24-25, 34-35). Plaintiffs challenge this data as exaggerating horse forage utilization compared to livestock utilization. Livestock grazing allotments are controlled through other processes and are not appropriately addressed in this round-up decision. Plaintiffs’ assertions with respect to the livestock have little relevance to the excess horse determination in this case. Because the BLM considered both AMLs and other evidence as to current wild horse impact on the range, the BLM properly decided there were excess horses based on the “thriving natural ecological balance” standard. Further, although the Act directs the BLM to consider the current inventory of horses, information contained in RMPs, and other relevant factors in determining whether there is an overpopulation, it also allows the BLM to act “in the absence of [that] information ... on" }, { "docid": "20404154", "title": "", "text": "At the hearing on this motion, defense counsel represented that one of those areas to which water was trucked in June is now dry. Further, “even if some of the HMA’s resources are not currently taxed by the existing horse and burros numbers, they soon will be given the animals’ rapidly increasing populations.” In Defense of Animals v. U.S. Dep’t of the Interior, 737 F.Supp.2d at 1134. The wild horse population in the Triple B Complex has been growing at a rate of 20-25% annually; from 2006 to the present the number of horses nearly quadrupled from 610 to 2,198. (EA 5). Absent action by BLM, the wild horse population will continue to grow at this rate, and within two years the population will reach an estimated 2,638 horses. (Id. at 12). If this were to happen, both the horses and the rangeland would suffer. In fact, the EA warns that if nothing is done the rangeland vegetative and water resources will be taxed such that there will be no potential for their recovery. (Id. at 34). A failure of the BLM to intervene, thus, would be a failure to maintain a thriving natural ecological balance within the range. “[T]he test as to appropriate wild horse population levels is whether such levels will achieve and maintain a thriving natural ecological balance on the public lands.” Dahl v. Clark, 600 F.Supp. 585, 595 (D.Nev.1984). Although AML is defined by reference to a thriving natural ecological balance and thus explicitly incorporates this standard, BLM’s Wild Horse and Burro Management Handbook states: “Justifying a removal [of horses] based on nothing more than the established AML is not acceptable.” (PI. Mot. Ex. 4 at 47). Even so, two courts have upheld excess horse determinations based primarily on the AML. See In Defense of Animals v. U.S. Dep’t of the Interior, 737 F.Supp.2d at 1133-34; Cloud Found., Inc. v. Kempthorne, 2008 WL 2794741, at *1 (D.Mont. 2008). In the case at bar, the court does not need to determine that reliance on the AML is sufficient, however. A review of the EA indicates that BLM" }, { "docid": "20404149", "title": "", "text": "remove excess animals; determine appropriate management levels of free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population). Id. § 1333(b)(1). As stated above, whenever the BLM determines that an overpopulation exists, it must “immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. § 1333(b)(2). Pursuant to this statutory directive, BLM establishes appropriate management levels (“AMLs”) of wild horses on the ranges. Id. § 1333(b)(1). AMLs are defined by BLM as “the number of wild horses that can be sustained within a designated HMA which achieves and maintains a thriving natural ecological balance in keeping with the multiple-use management concept for the area.” (EA 4). Range AMLs may be established in a number of ways, including through the preparation of “resource management plans” (“RMPs”). (See PI. Mot. Ex. 4 at 46); (infra sec. I.A.Ü). AMLs are generally not established or adjusted as part of a decision to round up excess horses. (Id. at 47). Defendants assert that the “applicable” RMP setting AMLs was last revised in 2008. The 2008 RMP related only to the Triple B AML, which is by far the largest HMA. (See Def. Opp’n Medlyn Decl. ¶ 21-22 (noting that the 2008 RMP set an AML of 250-518 wild horses for the Triple B HMA but not discussing AMLs for the other HMAs); EA 4-5). The Maverick-Medicine AML was adjusted to its current level through a combination of decisions in 1994,1998, and 2001. The Antelope Valley AML was last adjusted in 2001, and the Cherry Springs’ AML was established in 1993. (EA 5). Plaintiffs argue that instead of basing its excess horse determination on the “thriving natural ecological balance” standard, BLM improperly relied on the AMLs and the fact that the number of estimated horses exceeded the AMLs. Plaintiffs contend that the AMLs established “several years ago” do not take into account the current ecological state of the HMAs and that a" }, { "docid": "2758024", "title": "", "text": "be taken to remove excess animals; determine appropriate management levels of wild free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels). Id. Congress provided that “[a]ll management activities shall be at the minimal feasible level ....”§ 1333(a). Yet the Act also provides that if the current population inventory reveals that “an overpopulation exists on a given area of the public lands,” and if the BLM determines that “action is necessary to remove excess animals,” the BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.” § 1333(b)(2). The Act defines “excess animals” as “wild free-roaming horses or burros ... which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” § 1332(f). Thus, while the overarching purpose of the Act is to protect wild horses and burros from “capture, branding, harassment or death,” § 1331, the BLM is required to remove wild horses and burros from a given area of the public lands when an overpopulation exists. In removing “excess animals,” the Act instructs the BLM to take action in the following order and priority, until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation: (A) The Secretary shall order old, sick, or lame animals to be destroyed in the most humane manner possible; (B) The Secretary shall cause such number of additional excess wild free-roaming horses and burros to be humanely captured and removed for private maintenance and care for which he determines an adoption demand exists (C) The Secretary shall cause additional excess wild free-roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible. § 1333(b)(2) (emphasis added). Plaintiffs make five arguments" }, { "docid": "10889843", "title": "", "text": "a current inventory” of wild horses on the land the agency administers and, based on that inventory, determine “whether and where an overpopulation exists and whether action should be taken to remove excess animals.” Id. § 1333(b). “[EJxcess animals” are those horses “which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” Id. § 1332(f). To aid its ability to determine whether a given number of horses constitutes an “overpopulation” containing “excess animals,” BLM is instructed to set “appropriate management levels of wild free-roaming horses” for the lands the agency administers. Id. § 1333(b)(1). BLM must “determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” 16 U.S.C. § 1333(b)(1). “Where [BLM] determines ... that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [the agency] shall immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. § 1333(b)(2). The “range” is defined as “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, ... which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands.” Id. § 1332(c). The term “remove” is not defined within the statute, but the Act authorizes the BLM to “remove” horses by euthanizing them or offering them for sale and/or adoption. See id. § 1333(b)(2), (e). “All management activities” of BLM “shall be at the minimal feasible level,” id. § 1333(a), presumably in keeping with Congress’s express finding that wild horses should be “considered in the area where presently found, as an integral part of the natural system of the public lands.” Id. § 1331. III. DISCUSSION According to the plaintiffs, the “gather” of wild horses in the Calico Mountains Complex that has been proposed by BLM would exceed the authority conferred upon the agency by the" }, { "docid": "2758033", "title": "", "text": "by the Secretary, nor have Plaintiffs presented any evidence suggesting that the Twin Peaks HMA has been so designated. Therefore, any requirements that might stem from the definition of “range” in the Act do not apply to the Twin Peaks HMA. Fourth, Plaintiffs argue that the BLM violated the Act’s mandate that the BLM manage horses and burros at a “minimal feasible level” when the BLM “decided to chase with helicopters and capture up to 100% of the wild horses from the Twin Peaks HMA, remove[ ] about 80% [of the herd], inject mares with immunocontraceptives, and unnaturally skew the sex ratio.” The Act does provide that “[a]ll management activities shall be at the minimal feasible level....” 16 U.S.C. § 1333(a). But Plaintiffs do not adequately take into account the full statutory language, which provides that “[a]ll management activities shall be at the minimal feasible level and shall be carried out ... in order to protect the natural ecological balance of all wildlife species which inhabit such lands.... ” § 1333(a) (emphasis added). Given BLM’s determination that the overpopulation of wild horses and burros threatened the natural ecological balance on the HMA, it reasonably determined that the gather was necessary to restore the AMLs and thereby protect the HMA’s natural ecological balance. Moreover, the BLM had simultaneous duties not only “to achieve and maintain a thriving natural ecological balance” on the HMA, § 1333(a), but also to remove excess animals “immediately” when the BLM determined “that an overpopulation exist[ed].” § 1333(b)(2). Congress could not have intended that the “minimal” management requirement would force the BLM to ignore these other statutory mandates. Given that this court must defer to the BLM’s expertise under the APA, see Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994), we hold that the BLM reasonably interpreted its statutory directive that management be at a “minimal feasible level” when it decided to implement the Gather Plan in light of the overpopulation at the time of the gather and the fact that inaction would have led only to further detrimental population increases. Fifth, Plaintiffs" }, { "docid": "2758027", "title": "", "text": "animals,” the BLM was required to determine that there was not a “thriving natural ecological balance” on the HMA due to the presence of wild horses and burros at the time of the gather. Plaintiffs cite 16 U.S.C. § 1332(f)(2), which defines “excess animals” as those animals which “must be removed from an area in order to preserve and maintain a thriving natural ecological balance....” This argument fails. Preservation efforts can hardly require prior destruction of what is to be preserved. Simply because removal is required when necessary to “preserve and maintain” such a “thriving natural ecological balance” does not mean that removal can occur only when there is a showing that such a balance no longer exists. Rather, the use of the phrase “preserve and maintain” in the definition of “excess animals” suggests that the BLM may determine removal is necessary to ensure that the current thriving natural ecological balance does not deteriorate in the future. Additionally, as the district court held, the statute determines “excess animals” through the use of AML levels. In Defense of Animals v. U.S. Dep’t of Interior, 909 F.Supp.2d 1178, 1192 (E.D.Cal.2012); 16 U.S.C. § 1333(b)(2) (if “an overpopulation exists,” and if the BLM determines that “action is necessary to remove excess animals,” the BLM “shall immediately remove excess animals from the range so as to achieve appropriate management levels.”) (emphasis added). Although the statute also provides that “[s]uch action shall be taken ... until all excess animals have been removed so as to restore a thriving natural ecological balance,” the most logical reading of those two phrases together is that the BLM must achieve a “thriving natural ecological balance” by maintaining the relevant AMLs. § 1333(b)(2). In this way, “AML is a vehicle used to move towards a [thriving natu ral ecological balance], and a trigger by which [] the BLM is alerted to address population imbalance.” In Defense of Animals, 909 F.Supp.2d at 1192; see also Am. Horse Protection Ass’n, Inc. v. Watt, 694 F.2d 1310, 1318 (D.C.Cir.1982) (The Act “directs that horses ‘shall’ be removed ‘immediately’ once the Secretary determines, on" }, { "docid": "19702244", "title": "", "text": "animals from the range so as to achieve appropriate management levels”). AMLs are determined though revisions to the applicable Resource Management Plan, or RMP. As the Gather EA notes, AMLs are established in order to ensure both a thriving natural ecological balance and a multiple use relationship in the HMA. AR 15448. The BLM works to achieve AML guidelines on the range in order to achieve a TNEB. AML is a vehicle used to move towards a TNEB, and a trigger by which the BLM is alerted to address population imbalance. Despite Plaintiffs’ argument to the contrary, TNEB represents an overall objective rather than the means to accomplish it. [17] That means, in the form of AML (as well as other factors the BLM has the discretion to consider in determining overpopulation) has already been determined and, as indicated above, no challenge to the operative RMP and its AML determination is presently being made. Here, as discussed above, the wild horse population in the Twin Peaks HMA well exceeded the high end of the AML, therefore compromising the preservation and maintenance of a thriving natural ecological balance in the preserve. See, e.g., AR 15442 (excess determination); AR 15442-15443 (noting insufficient forage to sustain growing herd, impaired riparian and wetland habitats, and impaired cultural resource cites); see also 15494-15502 (discussing condition of riparian and wetland sites). These determinations suffice in meeting the requirements of the Act for determining that an excess population existed. While Plaintiffs claim that horse and burro populations should be given priority within the HMA, and that a greater share of available resources (and presumably different AMLs) should be allocated to them as opposed to cattle or other livestock, that argument fails. First, to the extent that Plaintiffs propose that the multi-use parameters for the HMA be changed, such a change cannot be made within the confines of this action. Rangeland stewardship is established through periodically prepared resource management plans. See 43 U.S.C. § 1712; 43 C.F.R. Part 1600. The resource management plan applicable to the Twin Rivers HMA was last revised in 2008, after more than four" }, { "docid": "19908475", "title": "", "text": "34 (1976) (citing legislative history). The Act grants the Secretary of the Interior jurisdiction over all wild free-roaming horses and burros on federal lands and directs the Secretary to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). The Bureau (as the Secretary’s delegate) carries out this function in localized “herd management- areas” (“HMAs”), 16 U.S.C. § 1332(c); 43 C.F.R. § 4710.3-1, established in accordance with broader land use plans. Id. § 4710.1. There are currently 210 herd management areas in ten western states. Responsibility for a particular herd management area rests with the Bureau’s local field and state offices. In each herd management area, the Bureau determines an “appropriate management level” (“AJVIL”) for the wild horse and burro populations. 16 U.S.C. § 1333(b)(1). The Bureau describes the appropriate management level as “the median number of adult .wild .horses or burros determined through BLM’s planning process to be consistent with the objective of achieving and maintaining a thriving ecological balance and multiple-use relationship in a particular herd area.” Local Bureau offices have significant discretion to determine their own methods of computing AML for the herds they manage. Some treat it as the midpoint of a sustainable range, while others treat it as a single number. When the Bureau determines “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals,” the Wild Horses and Burros Act requires it “immediately [to] remove excess animals from the range so as to achieve appropriate management levels.” 16, U.S.C. § 1333(b)(2). Before taking such action, the Bureau prepares a detailed .“gather” plan, including an environmental assessment in compliance with the National Environmental Policy Act. Gather decisions are subject to administrative appeal. 43 C.F.R. § 4770.3; id. pt. 4. In early 1999, the Bureau recognized that a population explosion among wild horses and burros had rendered it incapable of achieving its statutory goals at then-current funding levels. The nationwide wild horse and burro population was" } ]

[ { "docid": "6643896", "title": "", "text": "that Goodell had not made the requisite showing of vindictiveness to warrant relief. State v. Goodell, 2007 WL 2874334. In reaching its decision, the appellate court correctly identified two important Supreme Court decisions, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). In Pearce, the Court recognized that where a defendant has successfully challenged his conviction and then is convicted again on retrial, due process is violated if the sentence imposed on resentencing is influenced by vindictiveness on the part of the sentencing court. 395 U.S. at 725, 89 S.Ct. 2072. Recognizing that retaliatory motivation could be difficult to prove, the Court held that whenever a more severe sentence is imposed on resentencing, the reasons, based on objective information, must affirmatively appear in the record. Id. at 726, 89 S.Ct. 2072. Because no record of such reasons had been made in the two cases then before it, the Pearce Court upheld the award of habeas relief in both cases. Although the notion of a “presumption” appears nowhere in the Pearce opinion, the ruling has since been read to apply “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (applying the presumption but finding it rebutted by the sentencing court’s careful explanation of reasons for imposing a greater sentence). In McCullough, the Court revisited the issue of vindictiveness and the teaching of Pearce. After McCullough was initially convicted of murder and sentenced by the jury to a prison sentence of twenty years, the trial court granted his motion for new trial based on prosecutorial misconduct. McCullough, 475 U.S. at 135-36, 106 S.Ct. 976. McCullough had a second jury trial, with the same trial judge presiding. After the jury found him guilty, McCullough elected to be sentenced by the trial judge, who sentenced him to fifty years in prison. The Supreme Court declined to apply a presumption of" } ]

[ { "docid": "20932396", "title": "", "text": "court, however, stayed his release from prison until the State’s appeal could be heard. II. APPLICABLE LAW. In granting Thompson habeas corpus relief, the district court relied on the following body of law. North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969), established that “[d]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” In Pearce, the defendant had been tried and sentenced to twelve to fifteen years imprisonment. He reversed his conviction and upon retrial was sentenced, by the same judge, to what amounted to a longer term. The Supreme Court held as follows: In order to assure the absence of [retaliatory motivation on the part of the sentencing judge], we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. “In sum, the Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1981). The Pearce Court also held that “punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Pearce at 718-19, 89 S.Ct. at 2077. The key element in Pearce is “vindictiveness” by the sentencing party in response to a prisoner’s successful use of the appellate process. Thus, in cases where a second sentence. has been greater than the first, but different judicial bodies imposed the two sentences, Pearce has not applied. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), a different court imposed the second, harsher sentence, and the presumption of vindictiveness was not applied. Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), where a different jury imposed a harsher second sentence, the presumption was not applied. III. DISTRICT COURT OPINION. Against this" }, { "docid": "21936533", "title": "", "text": "vindictive. Defendant also argues that his sentence was imposed as a punishment for successfully appealing his initial conviction, in violation of the rule announced by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). As explained above, Defendant was originally convicted and sentenced to a 492-month term of imprisonment. This Court vacated the conviction on Speedy Trial Act grounds and remanded Defendant’s case back to the district court. After a second trial and guilty verdict before a new judge, Defendant was sentenced to 685 months. In Pearce, the Supreme Court held that a sentence reflecting “vindictiveness against a defendant for having successfully attacked his first conviction” violates the defendant’s Due Process rights. Id. at 725, 89 S.Ct. 2072. To ensure the absence of vindictiveness, the Court required that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 726, 89 S.Ct. 2072. “Otherwise, a presumption arises that a greater sentence has been imposed” vindictively. Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The Supreme Court has indicated, and several circuit courts have held, that the presumption of vindictiveness does not arise in the “second sentencer” context. See id. at 799, 109 S.Ct. 2201; see also Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (“The presumption is also inapplicable because different sentencers assessed the varying sentences that [the defendant] received.”); United States v. Clark, 84 F.3d 506, 508 (1st Cir. 1996) (“In this case, the defendant’s second sentence was imposed by a different judge. Thus, no presumption of vindictiveness arises.”); United States v. Rodriguez, 602 F.3d 346, 358-59 (5th Cir. 2010) (“[W]e join our seven sister circuits that, as discussed below, do not apply the presumption when different judges preside over the first and second sentencing.”) (collecting eases from other circuits). With a different judge imposing the sentence, there is no “reasonable likelihood that the increase in sentence is the product of actual vindictiveness" }, { "docid": "15938634", "title": "", "text": "considered “vindictive” and therefore violative of his due process rights under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). We reject the contention. Garcia’s higher sentence resulted solely from the district court’s correction of an error in Garcia’s first presentence report, an error the district court was obligated to correct. On this record, there is no “ 'reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (citation omitted) (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)); Bono v. Benov, 197 F.3d 409, 416 (9th Cir.1999). Garcia argues that his resentencing implicates the prophylactic rule of Pearce: “In order to assure the absence [of vindictiveness against a defendant for having successfully attacked his first conviction], we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Pearce, 395 U.S. at 726, 89 S.Ct. 2072. If the reasons do not appear, “a presumption arises that a greater sentence has been imposed for a vindictive purpose — a presumption that must be rebutted by objective information ... justifying the increased sentence.” Smith, 490 U.S. at 798-99, 109 S.Ct. 2201 (internal quotation marks omitted). The presumption of vindictiveness applies, however, only where “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. at 799, 109 S.Ct. 2201 (citation omitted). If the presumption does not apply, the “burden remains upon the defendant to prove actual vindictiveness.” Id.; Wasman, 468 U.S. at 569, 104 S.Ct. 3217. This rule applies to resen-tencings as well as retrials. See United States v. Rapal, 146 F.3d 661, 663 (9th Cir.1998). Garcia does not allege actual vindictiveness. He contends only that a presumption of vindictiveness arises" }, { "docid": "19059537", "title": "", "text": "of vindictiveness in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where a defendant successfully attacked a first conviction, sustained a second conviction after retrial, and then received a greater punishment on the second conviction than the trial court had imposed after the first. The Court later summarized Pearce as follows: Positing that a more severe penalty after reconviction would violate due process of law if imposéd as purposeful. punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant' the imposition of a prophylactic rule to ensure “that vindictiveness against a defendant for having successfully attacked his first conviction ... (would) play no part in the sentence he receives after a new trial ...” and to ensure that the apprehension of such vindictiveness does not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction.... ” Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (quoting Pearce, 395 U.S. at 725, 89 S.Ct. 2072). Where the prophylactic rule applies, a sentencing judge must cite “objective information ... justifying the increased sentence” to rebut the presumption of vindictiveness. Texas v. McCullough, 475 U.S. 134, 142, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Fry seeks application of a similar presumption to protect the exercise of the right to a jury trial, and he requests a remand for resentencing. The Court’s decision in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), provides important guidance for resolving Fry’s contention. Smith explained that the presumption of vindictiveness applies only where there is a “ ‘reasonable likelihood’ ” that an increase in sentence is the product of actual vindictiveness that would violate the Constitution. Id. at 799, 109 S.Ct. 2201 (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). The presumption may be applied “in the absence of any proof of an improper motive” and thus may “block a legitimate response to criminal conduct.” Id. Therefore, where there is no" }, { "docid": "3558473", "title": "", "text": "two that you committed aggravated assault with intent to do serious bodily injury to; and the Court simply sees no justification for the position that they should all be lumped together. Tr. 18-19. In his opinion on Rock’s post-trial motions, Judge Keller noted that his “sole involvement in the first trial was to preside over a suppression hearing,” and that he had read no part of the record of the proceedings prior to the retrial other than the opinion of the federal habeas corpus court. Opinion and Order at 9 (August 1, 1986). We are thus presented with a situation in which a second sentencing judge, serving on the same court as the first sentencing judge, imposed a harsher sentence after retrial, explaining on the record that he had taken a fresh look at the case and had concluded that a more severe sentence was-necessary in his judgment to reflect the seriousness of the offenses. Due Process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). In order to assure the absence of a vindictive or retaliatory motivation, the Court held in Pearce that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 725-26, 89 S.Ct. at 2081. This requirement has been read to create “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). In Pearce, the Court indicated that the “objective information” relied upon must concern conduct of the defendant occurring after the first sentencing. 395 U.S. at 726, 89 S.Ct. at 2081. It is now clear that the Pearce presumption may be rebutted by an explanation of the second sentencer based upon information concerning conduct or events preceding the first sentencing so" }, { "docid": "11038371", "title": "", "text": "the sentencing decision is entitled to considerable deference. Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 3220, 82 L.Ed.2d 424 (1984). We review the legality of a court’s order of restitution de novo, and if the sentence is legal, the award is reviewed for abuse of discretion. United States v. Jimenez, 77 F.3d 95, 99 (5th Cir.1996); United States v. Reese, 998 F.2d 1275, 1280 (5th Cir.1993). DISCUSSION In this appeal, we are faced with two questions: (1) whether the sentence imposed by the district court on remand was violative of Pearce, as a \"vindictive sentence, and (2) whether the district court erred by ordering Campbell to pay restitution. We affirm the district court’s sentencing decision and hold that Campbell’s sentence on remand was not vindictive in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). However, we reverse and vacate the district court’s restitution order. 1. VINDICTIVE RESENTENCING A. The Supreme Court’s Decision in Pearce In the seminal Pearce decision, the Supreme Court set out guidelines regarding vindictive sentencing occurring after a defendant successfully appeals a conviction (or convictions). The Court held that due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080. Further, “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear.” Id. at 726, 89 S.Ct. at 2081. This rule has since been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in" }, { "docid": "14972038", "title": "", "text": "F.3d 476, 481-82 (6th Cir.2001). While the United States Supreme Court has addressed the issue of prosecutorial vindictiveness, it has not examined the factual scenario present in this case, i.e., when the defendant’s allegation of prose-cutorial vindictiveness arises out of a superseding indictment sought after an initial mistrial. Of the four Supreme Court cases dealing with prosecutorial vindictiveness and relevant to our inquiry, two focus on vindictiveness as it applies to the enhancement of penalties and charges after a successful appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The other two address prosecutorial enhancement of charges in a pre-trial setting. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), and United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In North Carolina v. Pearce, the Supreme Court held that a presumption of vindictiveness arises when a state trial judge increases the punishment imposed at the first trial after the defendant is re-convicted of the same offense following a successful appeal and new trial. Pearce, 395 U.S. at 723-725, 89 S.Ct. 2072. The Court stated that this presumption may be overcome only by objective information in the record justifying the increased sentence. Id. at 726, 89 S.Ct. 2072. Years later, the Court applied the reasoning of Pearce to confront the problem found in Blackledge v. Perry. In Black-ledge, a prison inmate was charged and convicted in a state district court of a misdemeanor offense and, after he exercised his right to appeal and obtain a trial de novo in the superior court, the prosecutor obtained an indictment for a felony offense based on the same conduct. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Supreme Court held that this conduct violated due process and explained, A prosecutor clearly has a considerable stake in discouraging convicted misde-meanants from" }, { "docid": "1033677", "title": "", "text": "have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 726, 89 S.Ct. 2072. The Court did not discuss the impact that the use of a different sentencing judge might have on the analysis. See Texas v. McCullough, 475 U.S. 134, 140 n. 3, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (noting that the facts of Pearce actually involved a different sentencing judge following remand but that “the Court did not focus on it as a consideration for its holding”). Rather, the Court suggested the blanket rule that only facts arising after an initial sentencing could justify a more severe sentence on resentencing. Pearce, 395 U.S. at 726, 89 S.Ct. 2072. As explained by the Court in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), a series of subsequent rulings limited the effect of Pearce and clarified that a presumption of vindictiveness only arises where there is a “ ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. at 799, 109 S.Ct. 2201 (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). “Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Id. The parties in the present case disagree as to whether such a reasonable likelihood exists and, consequently, as to whether the government or the defendant bears the burden of proof. Some of the Supreme Court’s rulings after Pearce involved ■ situations where a different judge or jury imposed the increased sentence. See McCullough, 475 U.S. at 140, 106" }, { "docid": "14217673", "title": "", "text": "to, inter alia, the calculation of his base offense level. The district court overruled Graham’s objection and sentenced Graham to life imprisonment, to be served concurrently with the thirty-year sentence imposed by the Henry County Circuit Court. II. Analysis A. Vindictive Prosecution In North Carolina v. Pearce, the Supreme Court explained that “[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). To assure the absence of retaliatory motivations, the Court concluded that: [Wjhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective infor mation concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record .... Id. at 726, 89 S.Ct. 2072. In a later opinion, the Supreme Court summarized the rule of Pearce as follows: “[T]he Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In Blackledge v. Perry, the Supreme Court extended the “prophylactic rule of Pearce ” to certain circumstances in which “the central figure is not the judge[,] ... but the prosecutor.” 417 U.S. 21, 26, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Perry had been convicted of assault in a state district court with exclusive jurisdiction over misdemeanors and was sentenced to six months in prison. Id. at 22, 94 S.Ct. 2098. Under North Carolina law, Perry was entitled to a trial de novo in the Superior Court. Id. After Perry filed his notice of appeal, the prosecutor obtained an indictment" }, { "docid": "14934193", "title": "", "text": "in setting the initial sentence. Specifically, Correa contends that this upward departure 1) violated his rights to due process, 2) subjected him to double jeopardy, 3) was prohibited by the law of the case, and 4) was plainly unreasonable. The bulk of Correa’s appeal rests on the doctrine articulated in North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1968). Pearce prohibits increased sentences upon reconvietion, except under certain circumstances, based on a concern that the increase will be motivated, or perceived as motivated, by vindictiveness against the defendant for having successfully appealed. In Pearce, the Supreme Court found that a defendant’s due process rights were violated because a harsher sentence was imposed after he succeeded on appeal. Due process, the Court observed, “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial, ... [and] that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. at 725, 89 S.Ct. at 2080. The Court reasoned that higher sentences were constitutionally valid only if entered into “in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.” Id. at 723, 89 S.Ct. at 2079 (quotations omitted). To ensure that vindictive motives play no part in resentencing, the Court required that a court imposing a heavier sentence on reconvietion present objective reasons concerning “identifiable conduct on the part of the defendant” that occurred after the original sentencing. Id. at 726, 89 S.Ct. at 2081. The Court has narrowed the scope of the Pearce doctrine over the years to emphasize that the goal is to prevent the “ ‘evil’ ” of “ “vindictiveness of a sentencing judge,’ ” and not simply “ ‘enlarged sentences after a new trial.’ ” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989) (quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976," }, { "docid": "23398653", "title": "", "text": "contends that the district court’s imposition of a higher sentence at resen-tencing was vindictive, and therefore, a violation of her due process rights. We review de novo Peyton’s constitutional challenges to her doubled sentence. United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir.2000). Peyton has a Fifth Amendment due process right not to be subjected to vindictive resentencing after successfully attacking her conviction and sentence. See Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir.2003). To assure the absence of vindictiveness, the Supreme Court has concluded that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); see also United States v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir.2000) (holding that the Pearce presumption applies to resentencings as well as retrials). If the district court does not explain the reasons for the increase, “a presumption arises that a greater sentence has been imposed for a vindictive purpose — a presumption that must be rebutted by objective information ... justifying the increased sentence.” Garcia-Guizar, 234 F.3d at 489 (citing Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). However, the presumption of vindictiveness applies only in those cases where “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. (citation omitted). When a presumption of vindictiveness arises, the government may rebut it by providing reasons for the increased sentence using objective information. See Nulph, 333 F.3d at 1058-59. If the presumption does not apply, the defendant has the burden to prove actual vindictiveness. Garcia-Guizar, 234 F.3d at 489. A. The Accountable Loss Enhancement The increase in accountable loss resulted solely from the district court’s correction of its misunderstanding of the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The record reflects that the district court’s initial reluctance to attribute the entire loss" }, { "docid": "8017710", "title": "", "text": "subject to a’ de novo standard of review. See United States v. Smith, 73 F.3d 1414, 1417 (6th Cir.1996) (citing United States v. Knipp, 963 F.2d 839, 843 (6th Cir.1992)). We also review de novo claims of ineffective assistance of counsel, since the analysis of such a claim requires a consideration of mixed questions of law and fact. See Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir.1987). Any findings of fact pertinent to the ineffective assistance of counsel inquiry are subject to a “clearly erroneous” standard of review. See id. We turn now to Defendant’s respective challenges to the conduct of the district court and his attorney at his resentencing. A. Constitutional due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the Court announced, in order to assure the absence of retaliatory motivation in sentencing, that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 726, 89 S.Ct. 2072. The Court’s subsequent jurisprudence makes clear that the principle announced in Pearce constitutes a “prophylactic rule” that provides for a “presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Such information may come to the attention of a judge from a new presentence investigation or possibly from other sources. See Pearce, 395 U.S. at 723, 89 S.Ct. 2072. We have applied the Pearce rule where a defendant is merely resentenced and not retried on remand. See, e.g., United States v. Duso, 42 F.3d 365 (6th Cir.1994). Cases following Pearce illustrate that while due process does not forbid enhanced sentences, it prohibits actual vindictiveness against a defendant for having exercised his rights. See Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217," }, { "docid": "16952920", "title": "", "text": "under the Fifth Amendment. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, the Court created a presumption of vindictiveness when a defendant is given a greater sentence by the same sentencing authority after a retrial, unless the reason for doing so “affirmatively appears.” The holding in Pearce has been severely limited by subsequent judgments of the Court. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Court held that the presumption of vindictiveness is not present when a different judge imposes the second sentence. In such circumstances, “a sentence ‘increase’ cannot truly be said to have taken place.” Id. at 140, 106 S.Ct. at 979. The Court reasoned that the “vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial.”, Id. at 138, 106 S.Ct. at 978-979. Because Cheek was tried and sentenced by a different judge in his second trial, the presumption of vindictiveness is not present. When, as here, there is no reasonable likelihood of vindictiveness, the burden is on defendant to prove actual vindictiveness. Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201, 2204-2205, 104 L.Ed.2d 865 (1989) (citing Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984)). We are persuaded that the appellant did not meet his burden. In the present case, we cannot say that the judge “more likely than not” was motivated by vindictiveness, because there was sufficient justification for the heavier sentence. Alabama, 490 U.S. at 802, 109 S.Ct. at 2206. Judge Zagel identified two aggravating facts that arose subsequent to Cheek’s original trial, justifying the higher sentence: In acting as his own counsel, he repeatedly refused to comply with the judge’s rulings during the trial, and he demonstrated what the court described as his “hypocrisy” in saying that he was willing to abide by the Supreme Court’s judgment and then refusing to do so. For example, at sentencing the district" }, { "docid": "18255772", "title": "", "text": "increased sentence may be fully reviewed on appeal. Id. at 726, 89 S.Ct. 2072; see Goodwin, 457 U.S. at 374, 102 S.Ct. 2485 (stating that the Pearce Court “applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence”); see also Bryce, 287 F.3d at 256-57 (“ ‘[A] sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.’ ” (quoting Wasman v. United States, 468 U.S. 559, 572, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984))). The District Court on remand imposed twelve more months of imprisonment than it did initially, even though there had been no apparent change in defendant’s circumstances or in the court’s understanding of the record of his crime. Defendant argues that the Pearce presumption of vindictiveness thereby arose. We disagree. The Supreme Court has clarified that the Pearce presumption “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial” or at resentencing. Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The presumption exists to prevent not “enlarged sentences after a new trial” but rather “vindictiveness of a sentencing judge.” Id. Recognizing that “the Pearce presumption may operate in the absence of any proof of an improper motive and thus ... block a legitimate response to criminal conduct,” the Court has limited application of the presumption “to circumstances where its objectives are thought most efficaciously served.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (internal quotation marks and citation omitted). Accordingly, before a defendant may invoke the Pearce presumption, there must be a “reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. (emphasis added and citation and quotation marks omitted). “Where there is no such reasonable likelihood, the burden remains on the defendant to prove actual vindictiveness.” Id. at 799-800, 109 S.Ct. 2201 (citing Wasman, 468 U.S. at 569,104 S.Ct. 3217). We read Pearce and its" }, { "docid": "1637569", "title": "", "text": "terms (Uinta resentence). After Osborn was granted habeas relief on his second petition and resentenced on the Sweetwater crimes, his total sentence was three consecutive life terms plus a consecutive term of twenty-two to twenty-five years and two terms of forty-five to fifty years to run concurrent to one of the life sentences and consecutive- to the remainder of his sentence. Osborn claims that this increase in his total sentence violated his due process rights. See North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969). Under Pearce, a defendant cannot be vindictively sentenced for successfully attacking his first conviction. 395 U.S. at 725, 89 S.Ct. at 2080. Unless reasons for a more severe sentence affirmatively appear in the record, a presumption of vindictiveness arises that must be rebutted by objective information justifying the increased sentence. Texas v. McCullough, 475 U.S. 134, 142, 106 S.Ct. 976, 981, 89 L.Ed.2d 104 (1986). Over the years, the Supreme Court has limited the application of this rule to situations “in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201, 2205, 104 L.Ed.2d 865 (1989) (citation and quotation omitted). In Alabama v. Smith, the Court found the presumption not justified where the original sentence came after a guilty plea and the later, increased sentence followed a trial. Id. at 801, 109 S.Ct. at 2206. The Court stated that the information available to the judge after a trial concerning the nature and extent of the crimes and the defendant’s conduct to be considerably greater than that available after a guilty plea. Id. Therefore, “the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge.” Id. . we, believe that this case is similar to Alabama v. Smith and that there is no reason to apply the presumption." }, { "docid": "8977615", "title": "", "text": "that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 725-726, 89 S.Ct. at 2080-2081. In Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme Court indicated that relevant conduct or events that occurred subsequent to the original sentencing proceedings are those that throw “new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” Id. 104 S.Ct. at 3225-26 (Powell, J. concurring), quoting North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079. Due process bars an increased sentence where no intervening conduct or events justifies the increase, United States v. Whitley, 734 F.2d 994, 996 (4th Cir.1984), or where no objective information concerning petitioner’s conduct or culpability justifying the increase has been received. Texas v. McCullough, — U.S. -, 106 S.Ct. 976, 980-981, 89 L.Ed.2d 104 (1986). While the above decisions refer to vindictiveness and retaliatory motive on the part of a sentencing judge in imposing a more severe sentence upon reconviction, the dictates of due process require that the same standard apply to the action of the Parole Board under the facts set forth" }, { "docid": "18255771", "title": "", "text": "of -imprisonment of 54 months. This appeal followed. Discussion I. The District Court’s Imposition of Additional Prison Time on Remand Did Not Create a Presumption of Vindictiveness Singletary argues that because no new facts before the District Court at re-sentencing justified an increased sentence, the District Court’s imposition of twelve additional months of imprisonment creates a presumption of vindictiveness. He relies principally on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in which the Supreme Court held that [i]n order to assure the absence of such a [vindictive] motivation, we have con- eluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 726, 89 S.Ct. 2072; see Goodwin, 457 U.S. at 374, 102 S.Ct. 2485 (stating that the Pearce Court “applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence”); see also Bryce, 287 F.3d at 256-57 (“ ‘[A] sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.’ ” (quoting Wasman v. United States, 468 U.S. 559, 572, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984))). The District Court on remand imposed twelve more months of imprisonment than it did initially, even though there had been no apparent change in defendant’s circumstances or in the court’s understanding of the record of his crime. Defendant argues that the Pearce presumption of vindictiveness thereby arose. We disagree. The Supreme Court has clarified that the Pearce presumption “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial” or at resentencing. Texas v." }, { "docid": "20370510", "title": "", "text": "and we affirm. I. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court set aside the sentence of a state prisoner who had successfully appealed his conviction but upon remand was given a harsher sentence. The Court stated that a defendant’s dúe process rights were violated when, after a successful appeal, a harsher sentence was imposed as a result of vindictiveness. The Court went on to hold that, if a more severe sentence is imposed following appeal, the reasons for the harsher sentence must appear on the record and must be “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081. Subsequent to the decision in Pearce, the Supreme Court decided Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In Wasman, the Court clarified its Pearce holding by making it clear that enhanced sentences on remand were not prohibited unless the enhancement was motivated by actual vindictiveness against the defendant as punishment for having exercised his constitutionally guaranteed rights. See id. 468 U.S. at 568, 104 S.Ct. at 3222-23. In 1989, the Supreme Court further clarified the Pearce doctrine in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), explaining that, unless there was a “reasonable likelihood” that the increased sentence was the product of actual vindictiveness, the burden was on the defendant to show actual vindictiveness. Id. at 799, 109 S.Ct. at 2204-05. None of these three eases involved a sentence imposed under the federal sentencing guidelines, however. At the original sentencing hearing in this ease, the trial judge explained that he thought the criminal history category did not accurately represent defendant’s criminal history because four prior felony convictions over 10 years old were not counted pursuant to the dictates of the guidelines. The district judge also mentioned some other reasons in support of an upward departure, but, on review, the panel felt that the consideration of the sentences over 10" }, { "docid": "3558474", "title": "", "text": "the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). In order to assure the absence of a vindictive or retaliatory motivation, the Court held in Pearce that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 725-26, 89 S.Ct. at 2081. This requirement has been read to create “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). In Pearce, the Court indicated that the “objective information” relied upon must concern conduct of the defendant occurring after the first sentencing. 395 U.S. at 726, 89 S.Ct. at 2081. It is now clear that the Pearce presumption may be rebutted by an explanation of the second sentencer based upon information concerning conduct or events preceding the first sentencing so long as that information was not available to the judge imposing the first sentence. Texas v. McCullough, 475 U.S. 134, 141-44, 106 S.Ct. 976, 980-81, 89 L.Ed.2d 104 (1986). As Rock stresses, however, no Supreme Court case holds that an explanation like that of Judge Keller satisfies the record explanation requirement of Pearce where the doctrine of that case is applicable. The case law decided since Pearce makes it clear that the presumption of vindictiveness does not apply in every case where a convicted defendant receives a heavier sentence on retrial. Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989); McCullough, 475 U.S. at 138, 106 S.Ct. at 978. Because the Pearce presumption “may operate in the absence of any proof of an improper motive and thus ... block a legitimate response to criminal conduct,” the Court has limited its application to circumstances where there is a “reasonable likelihood” that the increase in sentence resulted from actual vindictiveness on the part of the sentencing authority. Alabama v. Smith, 490" }, { "docid": "6505285", "title": "", "text": "on the narcotics convictions in violation of his right to due process as elucidated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the Supreme Court held that “[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id. at 725, 89 S.Ct. at 2080. To guarantee the absence of vindictiveness, a sentencing court may impose an increased sentence only if it identifies “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing.” Id. at 726, 89 S.Ct. at 2081. Recently, the Supreme Court limited Pearce to apply to circumstances “in which there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989) (citation omitted) (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 2488-89, 73 L.Ed.2d 74 (1982)). If such a reasonable likelihood does not exist, “the burden remains upon the defendant to prove actual vindictiveness.” Id. 490 U.S. at 799-800, 109 S.Ct. at 2204-05. To assess whether a sentence violates Pearce and its progeny, we first ask “whether the new sentence is actually harsher than that imposed prior to successful appeal.” United States v. Schoenhoff, 919 F.2d 936, 939 (5th Cir.1990) (per curiam). Despite application of 18 U.S.C.A. § 3147 and U.S.S.G. § 2J1.7, Kincaid received a total sentence of 181 months imprisonment, a punishment significantly less onerous than his first sentence of 248 months imprisonment. Consequently, Kincaid fails to show that he received a harsher penálty, and we conclude that the Pearce presumption of vindictiveness does not apply. Moreover, even if Kincaid had received a harsher sentence, he would be unable to demonstrate a reasonable likelihood of vindictiveness based on a correct application of the sentencing guidelines by the district court that resulted in a higher guideline range. Cf." } ]

[ { "docid": "929031", "title": "", "text": "g., Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Grunewald v. Missouri Pacific Railroad Co., 331 F,2d 983 (8th Cir. 1964); Newport v. Revyuk, 303 F.2d 23 (8th Cir. 1962); Industrial Building Materials, Inc. v. Interchemical Corp., 278 F.Supp. 938 (C.D.Cal.1967) (and cases cited therein) F.R.Civ.P. 41. Dismissal is, however, a drastic sanction which should be sparingly exercised and is reviewable for abuse of discretion. See, e. g., Grunewald v. Missouri Pacific Railroad Co., supra; Newport v. Revyuk, supra; Bowles v. Goebel, 151 F.2d 671 (8th Cir. 1945). As to the nature of discretion and this court’s function in reviewing alleged abuse this court said in Bowles v. Goe-bel, supra, at 674: “Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists. «- * * And the process of an appellate court in examining exercised discretion for abuse is not one of creating prescriptions and definitions for the curbing of judgment generally, but simply one of viewing the action taken in an immediate case in the rel-ativeness of its entire situation to see whether it compels the conviction that there has been a responsible exercise in a legal sense of official conscience on all the considerations involved in the situation.” The heart of Appellants’ contention is that the district court abused its discretion in dismissing this case because Appellants’ actions were not willful. We do not agree. Willful as used in the context of a failure to comply with a court order or failure to prosecute implies a conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance and no wrongful intent need generally be shown. See, Societe Internationale, etc. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Discovery — Failure to Obey — Good Faith, 2 A.L.R.Fed. 811, 815 (1969). Appellants’ conduct throughout the proceedings in the district court evidenced a systematic pattern to delay trial on the merits. Not only was the" } ]

[ { "docid": "23605565", "title": "", "text": "that may be solely the fault of the plaintiffs’ attorneys. A court’s power of dismissal would be almost worthless, however, if a court could not hold a litigant responsible for the acts of his or her attorney where those acts meet the requirements of Rule 37 (willfulness, bad faith or fault) and Rule 41 (clear record of delay, contumacious conduct or prior failed sanctions). See Link, 370 U.S. at 633-34, 82 S.Ct. at 1390. Given that the requirements of these rules were met in this case and that the district court found the plaintiffs’ noncompliance to be “deliberate, willful, and in bad faith,” the plaintiffs may have legal recourse against their attorneys. We find, however, that the district court did not abuse its discretion, and accordingly, we affirm the district court’s refusal to alter its judgment dismissing the plaintiffs’ complaint. . Rule 41(b) provides in relevant part: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him____ Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits. Fed.R.Civ.P. 41(b). . \"A dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.\" Webber, 721 F.2d at 1069. . A consideration of lesser sanctions in such circumstances is particularly important when “the action is relatively young, a litigant is proceeding pro se, or no prior warning has been given that a sanction of dismissal will be imposed.” Schilling, 805 F.2d at 278. . The plaintiffs further argue that Rule 41(b) simply does not apply in this case. In support, they cite Societe Internationale v. Rogers, in which the Supreme Court stated, \"whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37____” 357 U.S. 197, 207, 78 S.Ct. 1087, 1093," }, { "docid": "22399172", "title": "", "text": "of his inaction. Id. at 919. In Mir, we suggested specifically that the court should have imposed a discovery and trial schedule, and that failure to comply with such a schedule without cause could be sufficient for the sanction of dismissal. Id. In this case, although no specific showing of prejudice to defendants is made, the integrity of the district court is involved. In this case, the district court did warn explicitly of the consequences of counsel’s dilatory behavior, and imposed a schedule for discovery and the filing of the pretrial order. Where counsel continues to disregard deadlines, warnings, and schedules set by the district court, we cannot find that a lack of prejudice to defendants is determinative. The record in this case reflects clearly that inordinate delay in the expeditious resolution of litigation, and prejudice to the court’s need to manage its docket were being exacerbated by counsel’s actions. On this record, therefore, we find no abuse of discretion in the district court’s dismissal with prejudice. We reject Henderson’s additional assertions of error. He claims that suits dismissed under Local Rule 42(e), require a showing of bad faith, and that the district court erred in its dismissal. Although Local Rule 42(e) does seem to require a showing of bad faith, no such showing is required under the court’s inherent power to dismiss for lack of prosecution under Fed. R.Civ.P. 41(b). Finally, we reject Henderson’s contention that his due process rights were violated because he was denied a hearing before the case was dismissed. Plaintiff did not in his motion nor at any time request a hearing before the district court on his motion to vacate order and motion to vacate judgment. We therefore do not reach this issue on appeal. See e.g. Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir.1972). The judgment of the district court is AFFIRMED. . Henderson's argument that dismissal is unjust because he is prejudiced solely because of his counsel’s errors has been rejected by the Supreme Court in Link v. Wabash Railroad, 370 U.S. at 633, 82 S.Ct. at 1390. Henderson was free" }, { "docid": "22221931", "title": "", "text": "that appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary or accidental. Absent such proof, we do not find that the district court abused its discretion in dismissing the appellant’s action with prejudice pursuant to Rule 41(b). In the alternative, appellant argues that the district court abused its discretion in dismissing his claims without first imposing lesser sanctions or explaining why lesser sanctions would have been ineffective. This court has held that “[t]he ultimate sanction of dismissal with prejudice should only be used when lesser sanctions prove futile.” Herring v. Whitehall, 804 F.2d 464, 468 (8th Cir. 1986); cf. Givens, 751 F.2d at 263-64 (reversing dismissal with prejudice where lesser sanctions were available). In the instant case, the district court, relying on First General, supra, 958 F.2d at 206, concluded that any lesser sanction would be ineffective. Order at 7. Indeed, unlike Givens, upon which appellant relies, any lesser sanction would have involved further delay or forced appellees to try their case without completing discovery. In Givens, this court reversed a Rule 41(b) dismissal with prejudice where the litigant’s sole transgression was failing to comply with the discovery deadline. Id. The court reasoned that dismissal with prejudice was disproportionate to this act of noncompliance; instead, the appropriate sanction would be to disallow any further discovery and move forward to trial on the evidence theretofore adduced. Id. at 263. At the time that the instant case was dismissed in June 1996, however, appellant had yet to produce fully records that appellees had requested in 1995. Further, appellant had yet to be fully deposed by appellees despite the district court’s efforts to accommodate appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial without further discovery would have prejudiced appellees, not appellant. Consequently, we hold that the district court did not abuse its discretion in concluding that lesser sanctions would be ineffective and unjustified or in granting dismissal with prejudice. See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before dismissal where lesser sanctions would have prejudiced defendant);" }, { "docid": "23164156", "title": "", "text": "after the filing of the interrogatories, the district court, under Fed.R.Civ.P. 37(b)(2)(C), dismissed the complaint with prejudice for failure to comply with its order. We affirm. Anderson argues first that the district court improperly assumed jurisdiction on removal from the state court and improperly dismissed Politte. Joinder designed solely to deprive federal courts of jurisdiction is fraudulent and will not prevent removal. Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979). Fraudulent joinder exists if, on the face of plaintiff’s state court pleadings, no cause of action lies against the resident defendant. Tedder, 590 F.2d at 117. In this case joinder is fraudulent. On the face of the pleadings, Anderson stated no claim against Politte: Anderson and Home Insurance were the only parties to the contract, and Politte apparently was uninvolved in the libel claim. As a result, Politte is not an indispensable party, see Fed.R.Civ.P. 19(a), and under Fed.R.Civ.P. 21 the district court properly dismissed Anderson’s claim against Politte. Anderson also argues that the district court abused its discretion when, under Fed.R.Civ.P. 37(b)(2)(C), it dismissed his complaint with prejudice for failure to obey its order regarding discovery. We cannot agree. Decisions regarding sanctions are for the district court, and will only be reversed for abuse of discretion. Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir.1975). Nevertheless, dismissal with prejudice for failure to comply with discovery rules is an extreme sanction, often reserved for willful or bad faith default, Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095-1096, 2 L.Ed.2d 1255 (1958). This Court has determined that a deliberate default suffices. Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1208 (8th Cir.1983). Lorin suggests that deliberateness includes failure to respond to discovery requests, even with extensions, and failure to provide full information after a court order. Under this standard, Anderson’s failure constitutes deliberate default. For four months Anderson ignored the interrogatories and a court order. Moreover, the district court dismissed his two previous suits in this matter for incomplete answers to interrogatories. Therefore, despite the severity of the sanction, Anderson’s silence warrants dismissal." }, { "docid": "23485259", "title": "", "text": "within ten days, the actions would be dismissed. No action was taken within the time limit, and on January 31, 1984, the actions were dismissed. Although pro se pleadings are to be construed liberally, pro se litigants are not excused from failing to comply with substantive and procedural law. Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2540-41 n. 46, 45 L.Ed.2d 562 (1975). A pro se litigant should receive meaningful notice of what is expected of him, but the court is not permitted to act as counsel for either party. Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir.1983). A district court has power to dismiss an action for refusal of the plaintiff to comply with any order of court, Fed.R.Civ.P. 41(b), and such action may be taken on the court’s own motion. M.S. v. Wermers, 557 F.2d 170, 175 (8th Cir.1977). Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 96 (8th Cir.1971). Although a dismissal with prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient to warrant such action by the trial court. Garrison v. International Paper Co., 714 F.2d 757, 760 (8th Cir.1983). The standard of review from a dismissal order is whether the district court has abused its discretion. Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976). In this case, Burgs showed a lack of diligence in pursuing his suits and an apparent unwillingness to comply with the orders of the court. He was given three opportunities to comply with the district court’s pretrial order and was forewarned each time that failure to do so could result in dismissal. The district court finally dismissed the actions when Burgs did not respond in time to its order of January 5, 1984. We find the district court did not abuse its discretion, and accordingly affirm the judgment of the district court pursuant to 8th Cir. R. 12(a)." }, { "docid": "22884822", "title": "", "text": "or a court order.” We review the district court’s factual finding of willful or intentional failure to prosecute or comply with court orders for clear error. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000). This court reviews the district court’s decision to dismiss an action pursuant to Rule 41(b) for abuse of discre tion. Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 797 (8th Cir.2003). When determining whether the district court abused its discretion in dismissing an action, “this court employs a balancing test that focuses foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court,” Rodgers v. The Curators of the Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998) (internal quotations and citation omitted). We have repeatedly stressed that the “sanction imposed by the district court must be proportionate to the litigant’s transgression,” id. (emphasis added), and that “[dismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint,” Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir.1984). We conclude that the sanction of dismissal with prejudice under these circumstances was disproportionate to Smith’s transgression. The district court therefore abused its discretion in dismissing with prejudice Smith’s complaint. The record does not show that Smith intended to delay the proceedings by failing to comply with discovery. Nor, does the record support the district court’s characterization that Smith contentiously refused to comply with court orders. To justify the extreme sanction of dismissal with prejudice, this court has required far more egregious and willful conduct than presented here. See, e.g., Good Stewardship Christian Ctr., 341 F.3d at 797-98 (holding dismissal with prejudice warranted when the record showed that plaintiffs conduct which included making several ex parte statements in violation of a district court order, making numerous baseless motions for sanctions against opposing counsel, failing to properly" }, { "docid": "22103987", "title": "", "text": "Neither does the record contain any of the aggravating factors discussed in McGlathery. The district court apparently dismissed Berry’s lawsuit merely because of Berry’s failure to file a motion for default judgment. Because this does not amount to a clear record of delay or contumacious conduct, and because there has been no showing of the futility of lesser sanctions, we hold that the district court abused its discretion in involuntarily dismissing Berry’s case for failure to prosecute. Ill For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings. . Cigna was in default because it had not yet filed an answer to Berry’s Title VII complaint. . Local Rule 3.1(h) provides: Where a defendant has been in default for a period of 90 days, but plaintiff has failed to move for default judgment, the action will be summarily dismissed as to that defendant, without prejudice and without notice. . Berry argues that the district court should have applied Fed.R.Civ.P. 55(a) rather than Local Rule 3.1(h). Rule 55(a) only authorizes the court to enter a default judgment against a defendant who fails to file pleadings; it does not state whether a court may dismiss a case where the plaintiff fails to file a motion for default judgment. Because Fed.R.Civ.P. 41(b) governs involuntary dismissals for failure to prosecute, we consult decisions applying Rule 41(b). .Fed.R.Civ.P. 41(b) provides: Involuntary Dismissal: Effect Thereof.... For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against the defendant. . A clear record of delay is found where there have been \" 'significant periods of total inactivity.’ ” Morris, 730 F.2d at 252. . Generally, where a plaintiff has failed only to comply with a few court orders or rules, we have held that the district court abused its discretion in dismissing the suit with prejudice. See, e.g., Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir.1984) (no clear record of delay or contumacious conduct where counsel failed twice" }, { "docid": "22221930", "title": "", "text": "was the heart of appellant’s problem in this ease do not make appellant’s conduct any less wilful or sanctionable for purposes of this analysis. Appellant was given ample opportunities to explain or cure his violations of discovery orders and the delay prejudiced appellees. Cf. Jackson v. Schoemehl, 788 F.2d 1296, 1299 (8th Cir.1986) (reversing dismissal with prejudice despite plaintiffs’ failure to file proposed findings of fact and conclusions of law for two years because court gave plaintiffs no opportunity to explain or cure tardiness and delay did not prejudice defendants). The above analysis notwithstanding, this case differs from other cases involving similar acts of noncompliance because of appellant’s traumatic head injuries. Indeed, appellant’s counsel compellingly argues that appellant “is a young man with cognitive disabilities secondary to traumatic closed head injuries suffered in an automobile accident that nearly took his life” and that the district court’s finding that appellant’s actions were “wilful and deliberate and taken deliberately to gain tactical advantage” ignores this fact. Upon careful examination of the record, however, we find no evidence that appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary or accidental. Absent such proof, we do not find that the district court abused its discretion in dismissing the appellant’s action with prejudice pursuant to Rule 41(b). In the alternative, appellant argues that the district court abused its discretion in dismissing his claims without first imposing lesser sanctions or explaining why lesser sanctions would have been ineffective. This court has held that “[t]he ultimate sanction of dismissal with prejudice should only be used when lesser sanctions prove futile.” Herring v. Whitehall, 804 F.2d 464, 468 (8th Cir. 1986); cf. Givens, 751 F.2d at 263-64 (reversing dismissal with prejudice where lesser sanctions were available). In the instant case, the district court, relying on First General, supra, 958 F.2d at 206, concluded that any lesser sanction would be ineffective. Order at 7. Indeed, unlike Givens, upon which appellant relies, any lesser sanction would have involved further delay or forced appellees to try their case without completing discovery. In Givens, this court reversed" }, { "docid": "23479795", "title": "", "text": "a futile waste of judicial resources and that dismissal was the appropriate response. II. The Federal Rules of Civil Procedure permit dismissal with prejudice “[f]or failure of a plaintiff to prosecute or to comply with these rules or any order of court.” Fed.R.Civ.P. 41(b). Despite the breadth of this language, however, we have recognized that dismissal with prejudice is an extreme sanction that should be used only in cases of willful disobedience of a court order or where a litigant exhibits a pattern of intentional delay. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997). This does not mean that the district court must find that the appellant acted in bad faith, but requires “only that he acted intentionally as opposed to accidentally or involuntarily.” Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998). We review for clear error the district court’s factual finding of a willful disregard of court orders or of a pattern of persistent delay. See id. Even where the facts might support dismissal with prejudice, this “ultimate sanction ... should only be used when lesser sanctions prove futile.” Id. at 1222 (citations and quotation marks omitted). “A district court should weigh its need to advance its burdened docket against the consequence of irrevocably extinguishing the litigant’s claim and consider whether a less severe sanction could remedy the effect of the litigant’s transgressions on the court and the resulting prejudice to the opposing party.” Hutchins, 116 F.3d at 1260 (citation omitted). Because district courts are “more familiar with proceedings before them and with the conduct of counsel than we are,” we give them “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Id. (citation and quotation marks omitted). Although we have encouraged district courts to warn litigants when they are “skating on the thin ice of dismissal,” such admonitions are not necessary to sustain a Rule 41(b) dismissal. Rodgers, 135 F.3d at 1221. The ultimate decision of what sanctions are appropriate is reviewed for abuse of discretion. See Hutchins, 116 F.3d at 1260. We conclude that" }, { "docid": "22221933", "title": "", "text": "Rogers v. Kroger Company, 669 F.2d 317 (5th Cir.1982) (“A clear record of delay coupled with tried or futile lesser sanctions will justify a Rule 41(b) dismissal with prejudice.”). IV. Conclusion In light of the foregoing, we hold that the district court did not abuse its discretion in dismissing appellant’s action with prejudice on the ground that appellant’s conduct constituted a wilful disregard of court orders. See First General, 958 F.2d at 206 (“Although dismissal with prejudice is a severe sanction, the court may impose such a sanction where the plaintiff has engaged in a pattern of intentional delay.”); Burgs v. Sis-sel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam) (“Although a dismissal with prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient to warrant such action by the trial court.”). Accordingly, we affirm the judgment of the district court. . The Honorable Scott O. Wright, United States Senior District Judge for the Western District of Missouri. . Appellant does not appeal the district court’s award of attorneys’ fees. . The parties had previously agreed to complete appellant’s deposition after the close of discovery in order to accommodate a scheduling conflict between appellant and his then-current counsel. Accordingly, the district court scheduled appellant's deposition for April 15, 1996. However, as this date did not comport with appellant’s schedule, the deposition was rescheduled for April 22, 1996, in Kansas City, Missouri. . The Curators had previously moved for a dismissal of appellant’s case with prejudice on September 13, 1995. However, the district court declined to rule on that motion. . As a last ditch effort to compel reversal, appellant contends that he was misled by the district court to believe that appellees' Rule 41(b) motion would not be granted because the underlying proceedings were not stayed pending resolution of that motion. We fail to see any basis for appellant's assumption and reject this argument on appeal as meritless." }, { "docid": "22221918", "title": "", "text": "raised in appellant’s amended complaints, the district court extended the discovery cut-off date five times and reset the trial date three times. On April 29, 1996, appellees moved to dismiss appellant’s action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The next day, appellant obtained his fifth and current set of counsel. On June 10,1996, the district court granted appellees’ motion, finding that appellant had deliberately violated court orders and engaged in dilatory conduct, that appellant’s conduct had prejudiced ap-pellees by inhibiting their preparation for trial and compelling the expenditure of scarce educational resources, that the imposition of lesser sanctions would be ineffective and unjustified, and that appellant’s conduct was conscious, intentional, taken deliberately for tactical gain, and had the effect of attacking the integrity of the court. More specifically, the district court found that appellant was dilatory in his prosecution of the ease based on his filing a second amended complaint, which significantly expanded the scope of the litigation, and his repeated change of counsel. J.A. at 119-20 (Order at 3-4). On June 25, 1996, appellant filed a motion for reconsideration of the district court’s order of dismissal. Appellant’s motion was denied on July 15, 1996. This appeal followed. III. Discussion A. Standard of Review Rule 41(b) of the Federal Rules of Civil Procedure provides that a district court may dismiss a ease for failure to prosecute a claim or comply with court orders; unless otherwise specified, such dismissal operates as an adjudication on the merits. Fed. R.Civ.P. 41(b); Brown v. Frey, 806 F.2d 801 (8th Cir.1986) (Brown). This court reviews a Rule 41(b) dismissal under an abuse of discretion standard. Wright v. Sargent, 869 F.2d 1175, 1176 (8th Cir.1989) (per curiam). When reviewing under this standard, this court employs a balancing test that focuses foremost upon “the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court.” Omaha Indian Tribe v. Tract I — Blackbird Bend Area, 933 F.2d 1462, 1468" }, { "docid": "22221932", "title": "", "text": "a Rule 41(b) dismissal with prejudice where the litigant’s sole transgression was failing to comply with the discovery deadline. Id. The court reasoned that dismissal with prejudice was disproportionate to this act of noncompliance; instead, the appropriate sanction would be to disallow any further discovery and move forward to trial on the evidence theretofore adduced. Id. at 263. At the time that the instant case was dismissed in June 1996, however, appellant had yet to produce fully records that appellees had requested in 1995. Further, appellant had yet to be fully deposed by appellees despite the district court’s efforts to accommodate appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial without further discovery would have prejudiced appellees, not appellant. Consequently, we hold that the district court did not abuse its discretion in concluding that lesser sanctions would be ineffective and unjustified or in granting dismissal with prejudice. See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before dismissal where lesser sanctions would have prejudiced defendant); Rogers v. Kroger Company, 669 F.2d 317 (5th Cir.1982) (“A clear record of delay coupled with tried or futile lesser sanctions will justify a Rule 41(b) dismissal with prejudice.”). IV. Conclusion In light of the foregoing, we hold that the district court did not abuse its discretion in dismissing appellant’s action with prejudice on the ground that appellant’s conduct constituted a wilful disregard of court orders. See First General, 958 F.2d at 206 (“Although dismissal with prejudice is a severe sanction, the court may impose such a sanction where the plaintiff has engaged in a pattern of intentional delay.”); Burgs v. Sis-sel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam) (“Although a dismissal with prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient to warrant such action by the trial court.”). Accordingly, we affirm the judgment of the district court. . The Honorable Scott O. Wright, United States Senior District Judge for the Western District of Missouri. . Appellant does not appeal the district court’s award of attorneys’ fees." }, { "docid": "2723470", "title": "", "text": "the action; (3) failing to comply with the Settlement Conference Order; (4) failing to inform opposing counsel or the court of his counsel’s alleged injury; (5) failing to attempt service for almost three months; and (6) making knowingly false statements to the court in his motion to extend the non-expert discovery cut-off date. Rule 37(b)(2) permits a court to strike pleadings where a party fails to obey discovery orders. Rule 41(b) permits a court to dismiss an action with prejudice if the plaintiff fails to prosecute or to comply with a court order. The criteria for sanctions under either of these two rules are the same. Luden v. Breweur, 9 F.3d 26, 29 (7th Cir.1993). A court also has an “inherent power” to “levy sanctions in response to abusive litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). We have held that in reviewing the imposition of sanctions for an abuse of discretion, an appellate court should consider: “(1) whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery, (2) whether the dismissed party was warned that failure to cooperate could lead to dismissal, and (3) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir.1988). Here, the district court found that there would be prejudice to Appellees because Bentkowski had not yet perfected service on newly named defendants, and the need of those new defendants to conduct their own discovery would delay the case. The district court clearly placed Bentkowski on notice of the possibility of sanctions because the Case Management Order stated that “[t]his Order shall constitute notice for purposes of sanctions up to and including dismissal and/or striking of offending party’s pleadings for failure to abide by any Court Order.” The district court did not specifically state whether it considered less drastic sanctions. However, it found that Bentkowski knowingly made false representations in his motion for extension of time. Cf. Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir.1985) (“Dismissal" }, { "docid": "22221929", "title": "", "text": "Having found that the district court’s finding of wilful conduct was not clearly erroneous, we will not reverse its selection of a sanction unless the court abused its discretion. Moreover, because a district court may dismiss a case for any violation of a court order, Brown, 806 F.2d at 803, and there is evidence of several intentional acts of delay, we affirm. While we agree with appellant that the instant ease does not approach the most egregious conduct upon which this court has previously affirmed dismissals with prejudice, and while “not every instance of failure to comply with an order of court, however inexcusable, justifies total extinction of a client’s cause of action,” Givens, 751 F.2d at 263, dismissal with prejudice is not subject to reversal here where appellant has engaged in several acts of wilful noncompliance with orders of the court. Moreover, evidence of appellant’s eleventh-hour attempt to cure his violation of a discovery order, unsubstantiated allegations of attorney neglect, and an acknowledgment by the district court that the obstreperous conduct of appellant’s parents was the heart of appellant’s problem in this ease do not make appellant’s conduct any less wilful or sanctionable for purposes of this analysis. Appellant was given ample opportunities to explain or cure his violations of discovery orders and the delay prejudiced appellees. Cf. Jackson v. Schoemehl, 788 F.2d 1296, 1299 (8th Cir.1986) (reversing dismissal with prejudice despite plaintiffs’ failure to file proposed findings of fact and conclusions of law for two years because court gave plaintiffs no opportunity to explain or cure tardiness and delay did not prejudice defendants). The above analysis notwithstanding, this case differs from other cases involving similar acts of noncompliance because of appellant’s traumatic head injuries. Indeed, appellant’s counsel compellingly argues that appellant “is a young man with cognitive disabilities secondary to traumatic closed head injuries suffered in an automobile accident that nearly took his life” and that the district court’s finding that appellant’s actions were “wilful and deliberate and taken deliberately to gain tactical advantage” ignores this fact. Upon careful examination of the record, however, we find no evidence" }, { "docid": "2646779", "title": "", "text": "considered reasonable, even if we might have resolved the question differently.” Id. The district court’s decision must strike this court as “fundamentally wrong” for an abuse of discretion to occur. Johnson v. J.B. Hunt Transp. Inc., 280 F.3d 1125, 1131 (7th Cir.2002). A court may dismiss an action with prejudice “if the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or any court order.” Fed.R.Civ.P. 41(b). The court should exercise this right sparingly and should dismiss a case under Rule 41 only “when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir.1983). “Although dismissal is a harsh sanction that should be imposed infrequently, we recognize that the power to sanction through dismissal is essential to the district courts’ ability to manage efficiently their heavy caseloads and thus protect the interests of all litigants.” Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1177-78 (7th Cir.1987). In Roland, we concluded that the district court did not abuse its discretion when it dismissed plaintiffs’ complaint after the plaintiffs had committed ongoing discovery violations. Id. at 1180. Plaintiffs failed to respond to interrogatories and production requests, so defendants filed a Motion to Dismiss. Id. at 1176. Initially, the court denied the motion and granted plaintiffs additional time to respond. Id. However, when plaintiffs failed to produce discovery responses by the court-ordered discovery deadline, the court granted defendants’ Motion to Dismiss and awarded defendants attorney’s fees, specifically finding that plaintiffs had “acted willfully, deliberately, and in bad faith” in failing to comply with discovery orders. Id. The facts in this case bear a striking resemblance to those in Roland. Here, the court extended discovery deadlines multiple times to give Salata additional time to respond to discovery requests. Weyerhaeuser’s counsel reached out repeatedly to Elrabadi and attempted to resolve outstanding discovery disputes without court intervention, but when they received no response, they were forced to bring a Motion to Compel. The court granted Weyerhaeuser’s motion and ordered Salata to" }, { "docid": "22695128", "title": "", "text": "order, and that appellant did not indicate how long he was hospitalized. Appellant returned to work on December 31, some fourteen days before the filing deadline. The court observed that the burglary did not occur until after the filing deadline had passed, and that appellant had given no explanation of how the burglary related to his failure to file. Appellant’s timely notice of appeal followed the district court’s decision. II. Appellant first contends that the district court’s dismissal of his suit for failure to obey a court order was an abuse of discretion. We disagree. The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b). In this case, appellant failed to respond to a specific directive from the court. We are not prepared to say that the district court’s dismissal of the suit on this basis, or its finding that the excuses offered by appellant were insufficient, constituted an abuse of discretion. Appellant contends that dismissal of his suit conflicts with this Court’s cases setting forth four criteria for the propriety of dismissal under Fed.R.Civ.P. 41(b). These cases call for review of (i) the degree of personal responsibility of the plaintiff; (ii) the amount of prejudice caused the defendant; (iii) the existence of a history of deliberately proceeding in a dilatory fashion, and (iv) the existence of a sanction less drastic than dismissal. See Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982). We also are mindful of the fact that dismissal is not a sanction to be invoked lightly. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978). Nonetheless, the four factors discussed in Chandler are not a rigid four-prong test. Rather, the propriety of a dismissal of the type involved here depends on the particular circumstances of the case. Here, we think the Magistrate’s explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case" }, { "docid": "9683489", "title": "", "text": "in the District Court.’ ” Brown v. Frey, 806 F.2d 801, 804 (8th Cir.1986) (quoting Moore, 539 F.2d at 1193). The reviewing court should also consider whether the party whose action was dismissed willfully refused to comply with court orders. “Willful as used in the context of a failure to comply with a court order ... implies a conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance.” Welsh, 439 F.2d at 97. After reviewing the record as a whole, we conclude that the district court did not abuse its discretion in granting the defendants’ motions to dismiss with prejudice the Tribe’s action to quiet title. The record supports the district court’s finding that the Tribe’s failure to comply with the court’s orders was intentional or willful, not inadvertent or accidental. The Tribe’s conduct shows a pattern of noncompliance with court orders. On June 6, 1989, the magistrate assessed sanctions against the Tribe for failing to comply with the court’s January 26, 1989 order compelling discovery. Moreover, on September 29, 1989, the court warned the Tribe that its action would be dismissed unless the Tribe filed an adequate proposed pretrial order by October 16, 1989. The court dismissed the Tribe’s quiet title action only after the Tribe failed to heed its warning. See Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988) (finding dismissal with prejudice was appropriate when plaintiff failed to comply with an order to amend his pleadings), cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989); Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir.1986) (holding court properly dismissed the plaintiff’s case after plaintiff’s counsel failed to heed the court’s warning that failure to submit an acceptable pretrial order would result in dismissal); Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (finding court properly dismissed the plaintiff’s claims after he disobeyed three court orders requiring him to amend his pretrial statement). The district court properly found the Tribe’s proposed pretrial order inadequate. First, the Tribe refused to stipulate to any undisputed facts in the proposed pretrial order. The Tribe’s proposed" }, { "docid": "22221921", "title": "", "text": "acted intentionally as opposed to accidentally or involuntarily. E.g., Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 97 (8th Cir.1971). The district court’s determination that appellant wilfully disregarded court orders and engaged in intentional delay is a finding of fact, and hence is subject to the clearly erroneous standard of review. See Fed.R.Civ.P. 52(a). The clearly erroneous standard applies “even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985) (Anderson); see Fed.R.Civ.P. 52(a). Thus, we may not overturn the district court’s factual findings merely because we might have concluded differently had we initially decided the issue. Rather, a finding is clearly erroneous only when, “even though there is evidence in the record to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. B. Analysis Appellant argues that the district court abused its discretion in dismissing his action with prejudice and thereby permanently barring him from pursuing his claims against appellees. Specifically, Rodgers charges that dismissal was inappropriate because the court’s decision was based, in part, on the erroneous finding that his conduct was wilful. In addition, Rodgers argues that the district court abused its discretion in failing to impose lesser sanctions prior to dismissing the action with prejudice. The record in the instant ease contains instances in which appellant both wilfully violated court orders and, apparently, accidentally disregarded them. In light of the evidence of appellant’s acts of intentional noncompliance, we find that the district court’s finding of wilfulness is not clearly erroneous. For example, appellant failed to comply with the district court’s March 29, 1996 order to produce certain financial records. Appellant argues that he timely delivered these documents to his own counsel of record and that any delay in their production to appellees was the fault of his counsel and therefore unintentional. However, this" }, { "docid": "18745695", "title": "", "text": "PER CURIAM: Appellant Dianne Sue Cohen brings this appeal from the district court’s dismissal of her case for failure to obtain local counsel in accordance with the district court’s local rules. Appellant contends that the district court abused its discretion in granting appellee Carnival Cruise Lines’ motion to dismiss. While we concede the importance of prompt compliance with the local counsel rule, we find nonetheless that the sanction of dismissal with prejudice was not warranted in this case. Therefore, we vacate the decision below. The sole issue in this appeal is whether the district court abused its discretion in ordering dismissal. The district court has authority under Rule 41(b) to dismiss for failure to comply with court orders or federal rules. See Fed.R.Civ.P. 41(b). Since dismissal with prejudice has such drastic consequences for the plaintiff, such dismissal is proper only where there is “a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Thus, even though local rules are valid and binding on the parties, their enforcement must be tempered with due consideration of the circumstances. Appellant Cohen, a passenger aboard one of appellee’s ships, was injured during a cruise and filed suit in a New Jersey state court on March 14, 1984. The case was removed on diversity jurisdiction to federal court in April. On September 17, the parties agreed to transfer the case to the Southern District of Florida, and transfer was completed on September 24, 1984. One week later, appellee demanded appearance of local counsel but appellant had not yet obtained representation. Three weeks thereafter, appellee filed a motion to dismiss for failure to obtain local counsel. Although appellant did not respond to the motion, she moved on November 13 to admit her New Jersey counsel pro haec vice. The motion for pro haec vice was denied and appellee’s motion for dismissal was granted on December 26, 1984. A timely appeal followed. This recital of the proceedings below shows that the case was dismissed only three months and two days after" }, { "docid": "14901477", "title": "", "text": "PER CURIAM. Garland Farnsworth and John Johnson appeal pro se from the order of the district court sua sponte dismissing with prejudice their civil rights action for failure to comply with the district court’s orders to cooperate with appellees in preparing a discovery schedule. For reversal, appellants argue (1) the district court abused its discretion in dismissing their action with prejudice; (2) the district court erred in mooting appellants’ motion for a protective order and awarding attorneys’ fees to appel-lees for appellants’ failure to attend scheduled depositions; and (3) the district court’s bias against appellants denied them due process. We affirm. Pro se litigants are not excused from complying with court orders or substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam). A district court’s dismissal as a sanction under Federal Rule of Civil Procedure 37 for failure to comply with a discovery order is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985). After carefully reviewing the record on appeal, we note that the district court gave appellants meaningful notice of what was expected of them during the course of discovery, initially imposed less stringent sanctions when they failed to cooperate, and warned them that their failure to comply with subsequent court orders would result in dismissal of their action. Accordingly, we hold that dismissal was proper. See Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir.1976) (per curiam). We further hold that the district court did not abuse its discretion in awarding to appellees attorneys’ fees after appellants failed to attend their properly-noticed depositions. See Fed.R.Civ.P. 37(d); King v. Fidelity Nat. Bank, 712 F.2d 188, 191 (5th Cir.1983) (per curiam), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984). Finally, appellants’ allegations of district court bias and prejudice are wholly unfounded. Accordingly, the district court’s judgment is affirmed. . The Honorable Scott O. Wright, United States District Judge for the" } ]

[ { "docid": "22148817", "title": "", "text": "Court has in some instances required a positive showing of prejudice by a defendant before it will grant relief for an alleged violation of a constitutional right. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. -, -, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (compulsory process clause); United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397-98, 49 L.Ed.2d 342 (1976) (due process clause); see Coles v. Peyton, 389 F.2d 224, 230 (4th Cir.) (Craven, J., dissenting) (discussing Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). Cf. Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970) (alleged violation of right to effective assistance of counsel denied where “the claim of prejudice ... was without substantial basis”). .If this court were to offer a significantly more favorable procedural posture to claims of ineffective assistance than to other habeas claims, we would establish a perverse incentive to present alleged trial errors as ineffective assistance claims. This incentive would tend to' undermine the “cause and prejudice” requirement in Wainwright and Frady, see Tague, Federal Habeas Corpus and Ineffective Representation of Counsel: The Supreme Court Has Work To Do, 31 Stan.L.Rev. 1, 63-64 (1978); Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 Ariz.L. Rev. 443, 479 (1977), and encourage the filing . of frivolous ineffectiveness claims in an attempt to obtain enhanced procedural advantages. See Cooper v. Fitzharris, 586 F.2d 1325, 1329-30 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). The case law has generally recognized a rough congruence between the showing of prejudice necessary to avoid procedural default under Wainwright and the showing of prejudice necessary to obtain a new trial for ineffective assistance of counsel. See, e.g., Jurek v. Estelle, 593 F.2d 672, 680-84 (5th Cir.), vacated, 597 F.2d 590 (5th Cir.1979), rehearing en banc, 623 F.2d 929 (5th Cir. 1980) (issue of interplay between Wainwright and substantive prejudice requirement not reached), cert. denied, 450" } ]

[ { "docid": "21730411", "title": "", "text": "as to the reality of his justification. Given such a defense, we conclude that the instruction was “harmless beyond a reasonable doubt” because we are “confident that a Sandstrom error did not play any role in the jury’s verdict.” Connecticut v. Johnson, 460 U.S. at 87, 103 S.Ct. at 977. Ineffective assistance of counsel Church claims that, in devising and presenting the above defense, his trial counsel was incompetent, whereas the Sixth Amendment guarantees a criminal defendant the assistance of a reasonably competent attorney. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Cooper v. Fitzharris, 586 F.2d 1325, 1330-31 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). The benchmark for judging any claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at-, 104 S.Ct. at 2064. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. The defendant must first show that his counsel’s performance fell below that required of a reasonably competent criminal defense attorney. The defendant must also show that his counsel’s conduct prejudiced the defense. Id. at -, 104 S.Ct. at 2064; People of the Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir.1984). The test for prejudice is whether there is a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at-, 104 S.Ct. at 2068. The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. Id. at -, 104 S.Ct. at 2070. Church contends that, whatever may have been counsel’s strategy, his failure to object to the Sandstrom instruction at trial and on appeal amounted to ineffective assistance of counsel. We disagree. Sandstrom v. Montana, 442 U.S. 510," }, { "docid": "22148818", "title": "", "text": "as ineffective assistance claims. This incentive would tend to' undermine the “cause and prejudice” requirement in Wainwright and Frady, see Tague, Federal Habeas Corpus and Ineffective Representation of Counsel: The Supreme Court Has Work To Do, 31 Stan.L.Rev. 1, 63-64 (1978); Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 Ariz.L. Rev. 443, 479 (1977), and encourage the filing . of frivolous ineffectiveness claims in an attempt to obtain enhanced procedural advantages. See Cooper v. Fitzharris, 586 F.2d 1325, 1329-30 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). The case law has generally recognized a rough congruence between the showing of prejudice necessary to avoid procedural default under Wainwright and the showing of prejudice necessary to obtain a new trial for ineffective assistance of counsel. See, e.g., Jurek v. Estelle, 593 F.2d 672, 680-84 (5th Cir.), vacated, 597 F.2d 590 (5th Cir.1979), rehearing en banc, 623 F.2d 929 (5th Cir. 1980) (issue of interplay between Wainwright and substantive prejudice requirement not reached), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); Canary v. Bland, 583 F.2d 887, 890 (6th Cir.1978). See also Wainwright v. Sykes, 433 U.S. 72, 98, 97 S.Ct. 2497, 2512, 53 L.Ed.2d 594 (1977) (White, J., concurring). . If in a given case the petitioner does not have access to the information necessary to sustain his burden of proof, the district court is of course free to make appropriate adjustments in the allocation of the burden. See, e.g., United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir.1970). . See supra note 25 regarding the general congruence between the showing of prejudice to avoid procedural default and the showing necessary to obtain a new trial for violation of the right to effective assistance of counsel. See also The Supreme Court, 1976 Term, 91 Harv.L. Rev. 70, 219-21 (1977). . Our acceptance of the rule that the ineffective counsel question and the prejudice question are distinct inquiries, Washington v. Watkins, 655 F.2d at 1359 n. 23, may seem to imply that there" }, { "docid": "7148078", "title": "", "text": "v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (en banc), cert. granted, 462 U.S.-, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983); Ward v. United States, 694 F.2d 654, 664 (11th Cir.1983); Adams v. Balkcom, 688 F.2d 734, 738 (11th Cir.1982). In some cases, a single critical error may render counsel’s performance constitutionally defective. Nero Blackburn, 597 F.2d 991, 994 (5th Cir.1979). Here, Vela has identified not one error, but many, several of which were sufficiently grave to preclude the review of serious claims on direct appeal. We find that Vela has met his burden, and conclude that counsfilis..performance in this proceed-' ing fell below the range of competency-generally demanded of attorneys in criminal cases. Young v. Zant, 677 F.2d 792 at 798 (11th Cir.1982). Assessing counsel’s performance on the basis of the totality of the record, we_hoM-that--cOunsel ~nT~this pro ceedinaadid-not-render reasonably effective assistance. Actual and Substantial Disadvantage This does not, of course, complete our inquiry. In Strickland, we stated that once it is determined that defendant’s right to effective assistance of counsel was violated, a court should then separately determine whether petitioner suffered prejudice of sufficient magnitude to warrant granting the writ of habeas corpus. We decide that the petitioner has the burden of persuasion to demonstrate that the ineffective assistance created not only “a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage.” If he successfully satisfies this burden, the writ must be granted unless the state proves that counsel’s ineffectiveness was harmless beyond a reasonable doubt. Strickland, 693 F.2d at 1258 (citations omitted) (emphasis in original). In Strickland, the en banc Court rejected a per se rule of prejudice in ineffective assistance of counsel cases. It also rejected an outcome-determinative test as setting too high a standard, and refused to adopt the rule proposed by the panel majority, whereby petitioner had only to show that but for counsel’s ineffectiveness the trial, but not necessarily its outcome, would have been altered in a way helpful to the defense. Id. at 1260-62. Vela pled.,.guilty — to-murder-—T-he—jury'' was given the broadest range of punishment" }, { "docid": "7496127", "title": "", "text": "that [the defendant] was at all prejudiced by his attorney’s judgment.”); United States ex rel. Bradley v. McMann, 423 F.2d 656, 657-58 (2d Cir. 1970), cert, denied, 400 U.S. 994, 91 S.Ct. 464, 27 L.Ed.2d 442 (1971) (rejecting ineffective assistance claim premised on counsel’s failure to consult adequately with defendant, which resulted in counsel’s failure to verify and bolster an alibi defense, because “[appellant’s alleged alibi was apparently not disclosed to counsel at a conference several hours before the trial began, but was mentioned for the first time when appellant testified”; moreover, the prosecution’s rebuttal testimony “destroyed” the alibi, “thus bel[ying] the claim of prejudice resulting from the belated preparation of his trial counsel”). . In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Fourth Circuit held that [a]n omission or failure to abide by these requirements [of prompt appointment of counsel, adequate opportunity to prepare a defense, adequate consultation, and appropri ate investigation] constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish a lack of prejudice thereby. Id. at 226. In subsequent cases, the Fourth Circuit appears to have alluded to the prejudice requirement only briefly and obliquely. See, e.g., Via v. Superintendent, Powhatan Correctional Center, 643 F.2d 167, 175 (4th Cir. 1981) (finding “obvious” the prejudice the petitioner suffered when counsel pressured him into pleading guilty in part because counsel was unprepared to try the case: “Via had a right to plead not guilty and go to trial.... He was prejudiced when this right was frustrated because his counsel was unprepared to represent him effectively.”); Marzuilo v. Maryland, 561 F.2d 540, 546 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (noting simply that attorney’s failure to exclude jury during interrogation of the prosecuting witness about the crime charged in another rape indictment “failed to protect [the defendant] from the prejudicial effects of the jury’s exposure to the" }, { "docid": "13822472", "title": "", "text": "call a witness who is now dead, “a finding of departure from the standard of normal competence requires without more, a new trial.” United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3rd Cir.1970). In such cases “any substantial doubt must be resolved in favor of the defendant, inasmuch as Chapman permits a finding of harmless error only where it is concluded beyond a reasonable doubt that no prejudice resulted from the identified constitutional violation.” United States v. Baynes, 687 F.2d 659 at 670-71 (3d Cir.1982). Where counsel’s incompetence is not pervasive the accused must “demonstrate prejudice in ineffective assistance situations.” United States v. Baynes, 687 F.2d at 670. In such situations the defendant need only show that his attorney’s acts or omissions “might have led to a viable defense and a verdict favorable to [him],” id. at 671, (emphasis in original) quoting from United States v. Baynes, 622 F.2d 66 at 69 (3rd Cir.1980). Where it is possible to determine if the departure from normal competence was prejudicial, such as the failure to present certain physical evidence, the burden is on the defendant “to show that the missing evidence would have been helpful.” Id. See United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976) (petitioner had burden of proving that he was prejudiced by alleged deficiencies in trial counsel’s performance). See also United States Ex Rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982). In the Fourth Circuit, if the defendant shows that counsel was incompetent by failing to meet certain minimum requirements, the government has the burden of proving that the defendant was not prejudiced thereby. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). In Wood v. Zahradnick, 578 F.2d 980 (4th Cir.1978), the court stated that the government must show the error was harmless beyond a reasonable doubt. Id. at 982. The Fifth Circuit places the burden on a defendant, who was incompetently represented, to" }, { "docid": "11443792", "title": "", "text": "factors bearing on accepting a plea contemplated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it was fully adduced at Ford’s post-conviction evidentiary hearing that his guilty plea was entered knowingly and voluntarily. Under Todd, this post-conviction determination cures any error the trial court may have committed. Accordingly, and with all due respect to my distinguished colleagues, I would deny the petition for habeas corpus. . In the proceedings accompanying the guilty plea, the defendant admitted that he had had a forcible relationship with the prosecutrix. . Recently, in en banc decisions, two other circuits have determined that a defendant bears the burden of demonstrating that actual prejudice ensued from the alleged ineffective assistance of counsel. These courts held that the prejudice requirement is compelled by the Sixth Amendment. United States v. Decoster, 624 F.2d 196 (D.C.Cir.1979); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Commentators have observed that Decoster denotes a trend toward imposing a more stringent standard on a defendant before he will be granted a new trial as a result of ineffective assistance. See, e.g., Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Colum.L.Rev. 1053 (1980); Comment, Defendant Must Prove Counsel’s Serious Incompetence and Likelihood that Such Incompetence Had an Effect on the Outcome — United States v. Decoster, 53 Temp.L.Q. 193 (1980)." }, { "docid": "9379368", "title": "", "text": "the denial of counsel altogether. In Geders, counsel was prohibited by the trial judge from communicating with his client during an overnight recess; the Court held that for this period, the defendant’s “ ‘right to be heard by counsel’ ” had been abridged. 425 U.S. at 88-89, 96 S.Ct. at 1335-1336 (quoting Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932)). Similarly, in Herring, the Justices concluded that a defendant had been denied his right to the “Assistance of Counsel” where the court, acting pursuant to a state statute, barred an attorney from presenting a closing argument. 422 U.S. at 857, 95 S.Ct. at 2552. And in Holloway, the Court held that a defendant’s right to counsel had been infringed where his attorney improperly also represented a codefendant; in such a situation, prejudice “is presumed regardless of whether it was independently shown,” because a defendant represented by a lawyer serving two clients with contradictory interests in effect is denied his right to counsel altogether. 435 U.S. at 489, 98 S.Ct. at 1181. See generally Decoster, supra, 624 F.2d at 200-02; Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978) (in banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). These decisions, we believe, are offspring of the general rule, first announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the complete denial of counsel to a defendant could never give rise to harmless error. See Chapman v. California, 386 U.S. 18, 23 n.8, 87 S.Ct. 824, 827 n.8, 17 L.Ed.2d 705 (1967); see also United States v. Welty, 674 F.2d 185, 194 n.6 (3d Cir. 1982); United States v. Laura, 607 F.2d 52, 58 (3d Cir. 1979). Although no decision of the Supreme Court has dealt squarely with the showing required of a petitioner making the usual ineffective assistance claim under the habeas statute, arguably that question was resolved in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). In Morrison, the Supreme Court, reversing this Court," }, { "docid": "13822473", "title": "", "text": "to present certain physical evidence, the burden is on the defendant “to show that the missing evidence would have been helpful.” Id. See United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976) (petitioner had burden of proving that he was prejudiced by alleged deficiencies in trial counsel’s performance). See also United States Ex Rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982). In the Fourth Circuit, if the defendant shows that counsel was incompetent by failing to meet certain minimum requirements, the government has the burden of proving that the defendant was not prejudiced thereby. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). In Wood v. Zahradnick, 578 F.2d 980 (4th Cir.1978), the court stated that the government must show the error was harmless beyond a reasonable doubt. Id. at 982. The Fifth Circuit places the burden on a defendant, who was incompetently represented, to show that counsel’s ineffectiveness not only created a possibility of prejudice, but that it also worked to his “actual and substantial disadvantage.” Upon such a showing the government must show that counsel’s ineffectiveness was harmless beyond a reasonable doubt. Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir. 1982) (en banc). The Sixth Circuit does not require a showing of prejudice once it is shown counsel was ineffective. “Harmless error tests do not apply in regard to the deprivation of a procedural right so fundamental as the effective assistance of counsel.” Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). The Seventh Circuit has adopted a test which will deny relief to a person represented by ineffective counsel if in spite of counsel’s blunders it is still clear beyond a reasonable doubt that the jury would have convicted him. Wade v. Franzen, 678 F.2d 56, 59 (7th Cir.1982). The Eighth Circuit requires that a defendant who is incompetently represented must show that “the action or inaction of the attorney must have materially prejudiced" }, { "docid": "22217562", "title": "", "text": "635 F.2d 487, 491 (5th Cir. 1981) (denying relief in part because petitioner could show no prejudice from his appellate counsel’s failure to raise certain grounds on appeal because petitioner himself had raised those grounds in a pro se brief); Lovett v. Florida, 627 F.2d 706, 709-10 (5th Cir. 1980) (denying relief on ineffective assistance claim when petitioner contended, without any substantiation, that had counsel arranged for handwriting analyses, they would have been exculpatory); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978) (denying relief on ineffective assistance claim that was predicated on counsel’s failure to call witness when petitioner failed even to allege how witness’ testimony would have been helpful); United States v. Doran, 564 F.2d 1176, 1177-78 (5th Cir. 1977) (denying relief on ineffective assistance claim that was predicated on counsel’s failure to locate and subpoena two witnesses because “[tjhere has been no affirmative demonstration of prejudice”), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); and Pennington v. Beto, 437 F.2d 1281, 1285 (5th Cir. 1971) (indicating that on remand, petitioner would need to establish both that uncalled witnesses were available to counsel and that their testimony would have been helpful to petitioner’s case). Accord, Cooper v. Fitzharris, 586 F.2d 1325, 1331-33 (9th Cir. 1978) (en banc) (when an ineffective assistance claim is premised on specific acts or omissions of counsel, the allegations must be buttressed by a showing of injury or prejudice to the defendant), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Cf. Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972) (per curiam) (noting that since uncalled witnesses had testified at habeas hearing that they would have corroborated petitioner’s alibi defense, petitioner had demonstrated prejudice from counsel’s failure to investigate). How much prejudice need be demonstrated appears to be as yet an open question. Compare Davis v. Alabama, 596 F.2d 1214, 1221-23 (5th Cir. 1979) (suggesting that “[njot every defendant whose attorney was deficient must show prejudice,” but if so, a defendant “need only show that his attorneys’ errors were not ‘harmless beyond a" }, { "docid": "22419105", "title": "", "text": "18 L.Ed.2d 1149 (1967). . Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970). . See Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc). . United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). See also Suggs v. United States, 129 U.S. App.D.C. 133, 391 F.2d 971 (1968). . McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). . Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) (ere banc) (“general requirement of normal competency”). See also United States ex rel. Green v. Rundle, 452 F.2d 232 (3rd Cir. 1971). . While not adopting a specific standard of “reasonable competence” the Fourth Circuit has set forth specific duties of counsel which suggest this level of representation. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). See note 22 infra. . United States v. Hayes, 444 F.2d 472 (5th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1971) (“reasonably likely to render and rendering reasonably effective assistance”). See also West v. Louisiana, 478 F.2d 1026, 13 Crim.L.Rep. 2226 (5th Cir. 1973). . See also In re Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921 (1970) (ere bane). . There is reason to believe that defendants are not now generally receiving this level of assistance. See, e. g., Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) ; United States v. Hammonds, 138 U.S. App.D.C. 166, 425 F.2d 597 (1970). See generally, Bazelon, The Defective Assistance of Counsel, 42 U.Cinn.L.Rev. 1 (1973) ; materials cited in id. at 8 n. 29; Tamm, Advocacy Can Be Taught — The N.I.T.A. Way, 59 A.B.A.J. 625 (June, 1973). It is important to stress that the issue in ineffectiveness cases is not a lawyer’s culpability, but rather his client’s constitutional rights. Compare Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d" }, { "docid": "15271580", "title": "", "text": "appeal. Finding the district court’s decision in accord with controlling principles in our previous cases, we affirm. A. Failure to file a brief on direct appeal is ineffective assistance of counsel In Mylar v. Alabama, 671 F.2d 1299 (11th Cir.), reh’g denied en banc, 677 F.2d 117 (1982), cert. denied, -- U.S. --, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983), this court held, on facts indistinguishable from those in the present case, “that the failure to file a brief in a nonfrivolous appeal falls below the standard of competency expected and required of counsel in criminal cases and therefore constitutes ineffective assistance.” Id. at 1302. In so holding, the court expressly relied upon Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), a case in which the Supreme Court held that appellate counsel must function as an advocate and actively promote the client’s position by scrutinizing the record for errors and by presenting legal arguments in the client’s favor. The court in Mylar rejected the State of Alabama’s argument that the appellate court’s independent scrutiny of the record below, see supra note 3, afforded defendants meaningful appellate review notwithstanding the attorney’s ineffectiveness. 671 F.2d at 1302. The Mylar court remanded to the district court with instructions to grant the petitioner habeas relief unless the State granted Mylar either a new trial or an out-of-time appeal, citing Passmore v. Estelle, 607 F.2d 662, 664 (5th Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980). Anders and Mylar require that counsel must file a brief to perform effectively as an appellate advocate. B. The Prejudice Requirement The State of Alabama now urges that we reconsider the Mylar opinion in light of the more recent decision in Washington v. Strickland, 693 F.2d 1243, 1256-63 (5th Cir.1982) (Unit B en banc), cert. granted, -- U.S. --, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983), a case in which the former Fifth Circuit held that as a general rule, a habeas petitioner must establish actual prejudice to prevail on an ineffective assistance of counsel claim. In" }, { "docid": "13822506", "title": "", "text": "been unalterable, then it should logically and fairly follow that when it is determined that an accused has been represented by a legally incompetent attorney, as is the case here, it should be presumed, without further inquiry and as a matter of law, that the accused has suffered such grievous prejudice as to entitle him forthwith to a new trial. Compare Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (Hufstedler, Circuit Judge, joined by Ely and Hug, Circuit Judges, dissenting at 1334). SNEED, Circuit Judge (concurring in the result): I concur in the holding that the appellant was deprived of the effective assistance of counsel and that his conviction should be reversed. The appellant amply has established that his counsel at trial was incompetent and that his right to a fair trial was prejudiced. That is enough to entitle him to a reversal. That is all that need be said. Regrettably more has been said and because of this I, also regrettably, will say more. The test for ineffective assistance in this circuit has been and remains drawn from Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). The en banc court in Cooper v. Fitzharris established a two-part inquiry into ineffectiveness of counsel: first, the defendant must show he was denied “reasonably competent and effective representation,” id. at 1327; second, “where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense,” id. Judge Alarcon does not disagree with this. Incompetent counsel was described in Cooper v. Fitzharris as one that made “errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made.” Id. at 1330. Also presence of such counsel was distinguished from situations in which there was no counsel or in which “counsel was prevented from discharging his normal functions.” Id. at 1332. The verb “prejudice” was used without modifiers. The burdens placed on the defendant and the government under Cooper v." }, { "docid": "13822507", "title": "", "text": "and remains drawn from Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). The en banc court in Cooper v. Fitzharris established a two-part inquiry into ineffectiveness of counsel: first, the defendant must show he was denied “reasonably competent and effective representation,” id. at 1327; second, “where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense,” id. Judge Alarcon does not disagree with this. Incompetent counsel was described in Cooper v. Fitzharris as one that made “errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made.” Id. at 1330. Also presence of such counsel was distinguished from situations in which there was no counsel or in which “counsel was prevented from discharging his normal functions.” Id. at 1332. The verb “prejudice” was used without modifiers. The burdens placed on the defendant and the government under Cooper v. Fitzharris are as follows: 1. The defendant’s burden. In this circuit the defendant has the burden of showing “prejudice” or “actual prejudice” from the errors of counsel. The en banc court in Cooper v. Fitzharris did not state specifically the quantum of proof necessary to demonstrate the existence of prejudice. However, this court has described repeatedly the defendant’s burden as one of showing actual prejudice. See Brown v. United States, 665 F.2d 271, 273 (9th Cir.1982) (Tang, J., concurring) (describing Cooper as “actual prejudice” test); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980) (Cuyler v. Sullivan showing of adverse effect not same as Cooper showing of “actual prejudice”), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); United States v. Coupez, 603 F.2d 1347, 1350 (9th Cir.1979) (stating requirement as “actual prejudice”); see also United States v. Winston, 613 F.2d 221, 224 (9th Cir.1980) (no “substantial prejudice” from counsel’s failure to inform accused of judge’s participation in competency hearing); Lewis v. Cardwell, 609 F.2d 926, 928-29 (9th Cir.1979) (also using" }, { "docid": "9379369", "title": "", "text": "S.Ct. at 1181. See generally Decoster, supra, 624 F.2d at 200-02; Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978) (in banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). These decisions, we believe, are offspring of the general rule, first announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the complete denial of counsel to a defendant could never give rise to harmless error. See Chapman v. California, 386 U.S. 18, 23 n.8, 87 S.Ct. 824, 827 n.8, 17 L.Ed.2d 705 (1967); see also United States v. Welty, 674 F.2d 185, 194 n.6 (3d Cir. 1982); United States v. Laura, 607 F.2d 52, 58 (3d Cir. 1979). Although no decision of the Supreme Court has dealt squarely with the showing required of a petitioner making the usual ineffective assistance claim under the habeas statute, arguably that question was resolved in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). In Morrison, the Supreme Court, reversing this Court, 602 F.2d 529 (1979), held that an indictment could not be dismissed for government misconduct absent an allegation and showing “that the claimed violation had prejudiced the quality or effectiveness of respondent’s legal representation.” Id. at 363, 101 S.Ct. at 667. In arriving at this result, the Justices observed that [c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.... Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Id. 449 U.S. at 364-65, 101 S.Ct. at 667-68 (emphasis added). See also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), where" }, { "docid": "9905450", "title": "", "text": "18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). If he makes such a showing, he will be entitled to a new trial on the ground that he has not received the “reasonably effective assistance” of counsel. MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). We are dealing with a crucially important right, so our holding on this point is narrow. Not every defendant whose attorney was deficient must show prejudice. The Supreme Court has said that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice resulting from its denial,” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), and has held that the denial of counsel at a critical stage of a criminal proceeding is always considered prejudicial. See, e. g., Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). “That, indeed, was the whole point of Gideon v. Wainwright, 372 U.S. 335, [83 S.Ct. 792, 9 L.Ed.2d 799] [1963].” Chapman v. California, 386 U.S. at 43, 87 S.Ct. at 837 (Stewart, J., concurring). But “the purpose of Gideon was not merely to supply criminal defendants with warm bodies, but rather to guarantee reasonably competent representation,” Cooper v. Fitzharris, 551 F.2d 1162, 1164 (9th Cir. 1977), so if a defense attorney were to put on what amounted to no de fense at all, we would “not stop to determine whether prejudice resulted,” Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961). The Supreme Court has gone further than this, however; indeed the Court seems never to have applied the harmless error doctrine to a case involving the ineffective assistance of counsel. But see Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972). In three recent cases involving" }, { "docid": "4325731", "title": "", "text": "at trial is that counsel’s ineffectiveness may have so distorted the record that the record is an unreliable indicator of the defendant’s guilt. And, as noted in United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3rd Cir. 1970), changes in circumstances since the time of trial may also make it difficult for the court to determine the presence or absence of prejudice. . United States v. Hurt, 177 U.S.App.D.C. 15, 21, 543 F.2d 162, 168 (1976). The likelihood that counsel’s omissions will have impaired the defense, combined with the difficulty of proving that fact, have led several other circuits to presume the existence of prejudice in certain situations. See, e. g., United States ex rel. Green v. Rundle, supra, 434 F.2d at 1115; Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). Such a presumption is often created when counsel is not appointed until the eve of trial. See, e. g., Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. denied, Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967). In United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968), the Third Circuit established the rule that belated appointment of counsel was inherently prejudicial and makes out a prima facie case of ineffective assistance, shifting the burden of proving the absence of prejudice to the prosecuting authorities. This rule was applied subsequently in United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (3d Cir. 1969). There the court rejected a habeas petitioner’s claim of ineffective assistance because the record contained adequate affirmative proof that there was no prejudice. On appeal, the Supreme Court affirmed appellant’s conviction, noting that it was “not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). Although the Third Circuit later jettisoned its presumption-of-prejudice rule because it was" }, { "docid": "22046637", "title": "", "text": "be relevant. This does not mean that prejudice must be shown to demonstrate that counsel was constitutionally ineffective. Rather, it means that the magnitude of the attorney errors may be relevant to determining whether counsel was constitutionally competent. The outcome of many cases may be identical under both the majority’s standard and the automatic reversal rule, for attorneys who made errors that are likely to have “mattered” are more likely to be found to have been ineffective, than are attorneys who do not. The difference between the two standards is that the majority would deny relief to those who can show that their attorneys were constitutionally inept, but who cannot demonstrate precisely how that incompetence affected their defense. Thus, even a defendant whose counsel had been totally inept could be denied relief if it is not possible to demonstrate from the record that anything could have been done to help his case. Under the automatic reversal rule relief would not be denied to any defendant who demonstrated that he had been denied the assistance of competent counsel. Ill While the majority requires a showing of prejudice before violations of the right to effective assistance of counsel will be redressed, my brothers do not specify who bears the burden of proving prejudice or how heavy the burden will be. While I do not agree that prejudice must be shown, if the majority nonetheless adopts a harmless error approach, Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, would govern the burden of proving prejudice. The Supreme Court held in Chapman that “constitutional error . casts on someone other than the person prejudiced by it a burden to show that it was harmless.” (386 U.S. at 24, 87 S.Ct. at 828). Thus, the prosecution bears the burden of proving that the constitutional error “was harmless beyond a reasonable doubt.” (386 U.S. at 24, 87 S.Ct. at 828). This allocation of the burden of proving prejudice is supported by the fact that the government bears the burden of proving guilt beyond a reasonable doubt, as well as the fact" }, { "docid": "22217563", "title": "", "text": "that on remand, petitioner would need to establish both that uncalled witnesses were available to counsel and that their testimony would have been helpful to petitioner’s case). Accord, Cooper v. Fitzharris, 586 F.2d 1325, 1331-33 (9th Cir. 1978) (en banc) (when an ineffective assistance claim is premised on specific acts or omissions of counsel, the allegations must be buttressed by a showing of injury or prejudice to the defendant), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Cf. Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972) (per curiam) (noting that since uncalled witnesses had testified at habeas hearing that they would have corroborated petitioner’s alibi defense, petitioner had demonstrated prejudice from counsel’s failure to investigate). How much prejudice need be demonstrated appears to be as yet an open question. Compare Davis v. Alabama, 596 F.2d 1214, 1221-23 (5th Cir. 1979) (suggesting that “[njot every defendant whose attorney was deficient must show prejudice,” but if so, a defendant “need only show that his attorneys’ errors were not ‘harmless beyond a reasonable doubt,’ ” citing Chapman), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980); and United States v. Decoster, 624 F.2d 196, 290-95 (D.C. Cir. 1979) (en banc) (Bazelon, J., dissenting, joined by Wright, C.J.) (once petitioner has established his trial counsel’s ineffectiveness, burden is on government to establish that error was harmless beyond a reasonable doubt), with id. at 208 & n.74 (plurality opinion of Leven-thal, J., joined by three judges) (“the accused must bear the initial burden of demonstrating a likelihood that counsel’s inadequacy affected the outcome of the trial”; thereafter, “the conviction cannot survive unless the government demonstrates that it is not tainted by the deficiency, and that in fact no prejudice resulted”; if showing by the accused causes the court serious misgivings notwithstanding the absence of a constitutional violation, government may prevail upon showing short of Chapman standard); and id at 232 (MacKinnon, J., concurring, joined by two other judges) (“a defendant must show substantial unfair prejudice to his defense resulting from a substantial violation of duty" }, { "docid": "9905453", "title": "", "text": "a trial court improperly permits or requires the same attorney to represent two defendants at a joint trial, “reversal is automatic” even if neither defendant can show specifically that he was prejudiced. Id. 98 S.Ct. at 1180-82. Some circuits have gone further still and have held that a defendant never needs to show prejudice in order to establish that he has been denied the effective assistance of counsel. See Cooper v. Fitzharris, 551 F.2d 1162, 1164-65 (9th Cir. 1977); Beasley v. United States, 491 F.2d 687, 696-97 (6th Cir. 1974); but see United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977), cert. denied, 434 U.S. 932 (1978). Other circuits disagree and explicitly require a prejudice to be shown in some cases. See United States v. Cooper, 580 F.2d-259, 263 n. 8 (7th Cir. 1978); McQueen v. Swenson, 498 F.2d 207, 218-20 (8th Cir. 1973); United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115-16 (3rd Cir. 1970); United States v. DeCoster, 159 U.S.App.D.C. 326, 333, 487 F.2d 1197, 1204 (1973) (placing burden on government to show lack of prejudice); Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968) (same). See also United States v. Bosch, 584 F.2d 1113,1123 (1st Cir. 1978) (leaving question open). We have sometimes intimated that a defense attorney’s shortcomings vitiate a conviction only if they prejudice the defendant. See Friedman v. United States, 588 F.2d 1010, 1016, 1017 (5th Cir. 1979); Thomas v. Estelle, 588 F.2d 170, 171 (5th Cir. 1979); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); Pennington v. Beto, 437 F.2d 1281, 1285 (5th Cir. 1971). See also Sand v. Estelle, 551 F.2d 49 (5th Cir. 1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1267, 55 L.Ed.2d 783 (1978); Cheely v. United States, 535 F.2d 934, 936 (5th Cir. 1976). All of these cases involved an attorney’s failure to conduct an adequate investigation of possible defenses, and we believe this is decisive. Not every variety of attorney ineffectiveness should be treated in the same way." }, { "docid": "7496126", "title": "", "text": "defendants claim that potential conflict of interest on the part of their joint attorney prejudiced their cause, some specific instance of prejudice must be shown before it can be said that they received ineffective assistance). On some occasions, the Second Circuit has cited this rule in rejecting ineffective assistance claims because there has been no showing of prejudice. E.g., Auiet, 618 F.2d at 188 (“[H]ad a motion to suppress been made it would have been unsuccessful.”); LiPuma, 560 F.2d at 92-93 (same). On other occasions, however, the Second Circuit’s emphasis on the strength of the prosecution’s case approaches an “outcome-determinative” analysis. See, e.g., United States v. Williams, 575 F.2d 388, 393 (2d Cir.), cert, denied, 439 U.S. 842, 99 S.Ct. 134,58 L.Ed.2d 141 (1978) (“Other actions by [counsel], such as his tardy and unsuccessful application for production of a defense witness to discredit [the key prosecution witness], are not, to be sure, actions dictated by the demands of trial strategy. But given the strength of the government’s case against [the defendant], it is extraordinarily unlikely that [the defendant] was at all prejudiced by his attorney’s judgment.”); United States ex rel. Bradley v. McMann, 423 F.2d 656, 657-58 (2d Cir. 1970), cert, denied, 400 U.S. 994, 91 S.Ct. 464, 27 L.Ed.2d 442 (1971) (rejecting ineffective assistance claim premised on counsel’s failure to consult adequately with defendant, which resulted in counsel’s failure to verify and bolster an alibi defense, because “[appellant’s alleged alibi was apparently not disclosed to counsel at a conference several hours before the trial began, but was mentioned for the first time when appellant testified”; moreover, the prosecution’s rebuttal testimony “destroyed” the alibi, “thus bel[ying] the claim of prejudice resulting from the belated preparation of his trial counsel”). . In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Fourth Circuit held that [a]n omission or failure to abide by these requirements [of prompt appointment of counsel, adequate opportunity to prepare a defense, adequate consultation, and appropri ate investigation] constitutes a denial of effective representation of" } ]

[ { "docid": "6477535", "title": "", "text": "Monument would become a government-managed religious shrine. In this context, it is significant that plaintiff Grover Horned Antelope testified that he successfully completed his Vision Quest last year, in spite of distractions by tourists. This Court concludes, therefore, that defendants have not burdened the exercise of plaintiffs’ religion by “allowing” tourists to act on occasion in a manner which does not conform to the dictates of plaintiffs’ religion. CEREMONIAL AREA During the period of construction on the access road and parking lot, defendants closed for overnight camping the area traditionally used by plaintiffs for religious ceremonies. Defendant Gullet testified that the Department originally contemplated closing the area for all uses. See, Exhibit 1. Defendants have permitted daytime use of the area, however, and worshipers continue to use the area for sweat lodge ceremonies and fasting. Although plaintiffs have concluded that their right of access was unduly restricted, the record fails to show that a single person was ever denied access to Bear Butte for religious purposes. Defendants closed the ceremonial area temporarily and partially, in the interests of protecting the safety of the public and assuring the most expedient completion of construction. Obviously, work on the access road and parking lot would be frustrated if the vehicles of park visitors were allowed to interfere with heavy construction machinery. The greater delay in construction only increases the danger of erosion and washouts — the same dangers which suggested the need for permanent roads in the first place. In both Badoni v. Higginson and Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir. 1980), the courts held that Native Americans’ right to free exercise of religion was not unduly burdened even though their access to sacred ceremonial sites was completely barred by the permanent flooding of the sites for dam and reservoir projects. In the present case, any right of access possessed by plaintiffs is restricted only partially and temporarily. Plaintiffs failed to establish that overnight camping at the ceremonial area is an indispensible part of their religious practices. Conversely, defendants met their burden of demonstrating that the State has a" } ]

[ { "docid": "5069187", "title": "", "text": "Karok, and Tolowa Indian tribes. This region is known as the “high country.” Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def.Ex. G-K, Theodoratus Report (hereinafter “Theo.Rpt.”), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs’ rights under the Free Exercise Clause of the First Amendment. The Indian plaintiffs’ use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter “Tr.”) at 267-68) and probably much earlier (Theo.Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator” (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine” (Theo.Rpt. at 46). The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community (Tr. at 110-13; Theo.Rpt. at 417). Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines (Tr. at 237-39). They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances (Id.;" }, { "docid": "14630555", "title": "", "text": "Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion____ Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there. Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.” We agree with the district court that the proposed operations would interfere with the Indian plaintiffs’ free exercise rights. There is a great deal of evidence in the record that the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the “power” that permits them to fill the religious roles that are central to the traditional religions. There is abundant evidence that the unitary pristine nature of the high country is essential to this religious use. Finally, there is much evidence that the religious lives of many other Indians depends upon the services of those leaders who have received the necessary “power” in the high country. On all of these points, there is virtually no evidence to the contrary. The record also amply supports, indeed virtually compels, the conclusion that logging and the construction of logging roads would be utterly inconsistent with the Indians’ religious practices. Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear. The question of the completion of the G-0 Road, however, retains its full vitality. A substantial part of the evidence relied upon by the district court was the report prepared for the Forest Service by Dr. Theodoratus, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979) (“Theodoratus Report”). That Report was not at all equivocal about the Road: [T]he completion" }, { "docid": "14630586", "title": "", "text": "Eighth Circuit adopted the district court’s opinion. 706 F.2d at 858-59. The District of Columbia Circuit considered this issue in Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In Wilson, the Navajo and Hopi tribes sought to enjoin development of ski resorts in the San Francisco Peaks in Arizona. The tribes asserted that development of the Peaks “would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes.” Id. at 740. The tribe also asserted that development would impair their ability to pray, to conduct ceremonies, and to gather sacred objects such as fir boughs. Id. The District of Columbia Circuit rejected the tribe’s claims. The court noted that the development of the Peaks would not cause the tribes to be denied access to any sacred areas. Id. at 744. The court also concluded that development would not prevent the tribes from engaging in any religious practices. Id. at 744. The district court was aware of the decisions in those circuits. Nevertheless, the district court found that the Forest Service had violated the first amendment. In doing so, the district court became the first federal court to enjoin the development of public lands on free exercise grounds. III The Construction of the G-0 Road The district court found that the construction of the G-0 Road violated the free exercise clause because it “would seriously damage the salient visual, aural, and environment qualities of the high country.” 565 F.Supp. at 594-95. The district court did not make specific findings regarding the effects of the construction of the road. Instead, the district court relied exclusively on the conclusions of a study prepared by Dr. Dorothea Theodoratus at the request of the Forest Service. Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979) [hereinafter cited as Theodoratus Report ]. The study concluded that “intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the" }, { "docid": "5069197", "title": "", "text": "to performing the “World Renewal” ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system (Theo.Rpt. at 45-49). Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations (Tr. at 77). Degradation of the high country and impairment of such training would carry “a very real threat of undermining thé [tribal] communitpes] and religious practice[s] as they exist today.” Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534. Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there (Theo.Rpt. at 419-20). Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are * * * potentially destructive of the very core of Northwest [Indian] religious beliefs and practices” (Theo.Rpt. at 420). Upon careful analysis, it will be seen that prior cases involving Indian religious claims support the conclusion that the government actions proposed here burden the free exercise of plaintiffs’ religion. Unlike the present case, plaintiffs in Sequoyah did not claim that the area threatened with flooding played a central role in the practice of their religion, and in fact failed to demonstrate that there had been significant past use of the area for religious purposes. 620 F.2d at 1163-64. Likewise, plaintiffs in Hopi failed to show that the 777 acre parcel planned for development within the 75,000 acre San Francisco Peaks region was “central or indispensable to their religion. 8 ILR at 3075. In Crow v. Gullet, there was no claim that the challenged actions did more than possibly inconvenience Indian worshippers at Bear Butte by, for example, requiring campers to register with park officials. 541 F.Supp. at 791-93. Other cases directly support the conclusion that" }, { "docid": "14630554", "title": "", "text": "371, 78 L.Ed.2d 330 (1983). That the Indians use the Blue Creek high country area for religious purposes and consider the area sacred is not enough to characterize the contemplated Forest Service actions as a burden on free exercise rights. The Indians have to show that the area at issue is indispensable and central to their religious practices and beliefs, and that the proposed governmental actions would seriously interfere with or impair those religious practices. Wilson v. Block, 708 F.2d at 742-44; Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980); Crow v. Gullet, 541 F.Supp. 785, 792 (D.S.D.1982), aff'd, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). The district court here found that [f]or generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion____ Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there. Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.” We agree with the district court that the proposed operations would interfere with the Indian plaintiffs’ free exercise rights. There is a great deal of evidence in the record that the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the “power” that permits them to fill the religious roles that are central to the traditional religions. There is abundant evidence that the unitary" }, { "docid": "14630579", "title": "", "text": "to as “the high country,” is considered sacred by several Indian tribes. The district court described the Indian plaintiffs’ use of the high country as follows: Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century and probably much earlier. Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator.” Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community. Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines. They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances. 565 F.Supp. 586, 591-92 (N.D.Cal.1983) (citations omitted). In the early 1970s, the Forest Service began studying various land use management plans for the Blue Creek Unit. In 1981, the Forest Service issued the Blue Creek Unit Implementation Plan (“the Management Plan”), which proposed to authorize harvesting of 733 million board feet of timber over an eighty year period. Since the 1960s, the Forest Service has been upgrading a seventy-five mile road between Gasquet, California and Orleans, California (“the G-0 road”). Approximately six miles of the G-0 road lies within the Blue Creek Unit. In 1982, the Forest Service issued an environmental impact statement for the proposed construction of the final six miles, which is referred to as the “Chimney Rock Section.” The plaintiffs brought this" }, { "docid": "5069196", "title": "", "text": "A Burden on the Free Exercise of Religion ' The first step in evaluating plaintiffs’ claim based upon their constitutional right to the free exercise of religion is to determine whether the challenged actions do burden that right. The evidence establishes that construction of the Chimney Rock Section and/or implementation of the Management Plan would seriously impair the Indian plaintiffs’ use of the high country for religious practices. For generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion. See, e.g., Sequoyah, supra, 620 F.2d at 1164; Hopi, supra, 8 ILR at 3075. For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential to performing the “World Renewal” ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system (Theo.Rpt. at 45-49). Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations (Tr. at 77). Degradation of the high country and impairment of such training would carry “a very real threat of undermining thé [tribal] communitpes] and religious practice[s] as they exist today.” Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534. Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there (Theo.Rpt. at 419-20). Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are" }, { "docid": "14630553", "title": "", "text": "religion unless those actions are necessary to fulfill a governmental interest of the highest order that cannot be met in a less restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert v. Vemer, 374 U.S. 398, 403-09, 83 S.Ct. 1790, 1793-96, 10 L.Ed.2d 965 (1963). In this case the government challenges the district court’s conclusion that certain proposed Forest Service management decisions, if implemented, would impermissibly burden the Indian plaintiffs’ free exercise rights. Further, the government contends that even if its action would impose such a burden, it has demonstrated a governmental interest sufficient to override the Indians’ religious interests. A. Free Exercise Right To establish a constitutionally valid free exercise claim, the Indian plaintiffs have the initial burden of demonstrating that governmental actions create a burden on their rights. See School District of Abington Township v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). That the Indians use the Blue Creek high country area for religious purposes and consider the area sacred is not enough to characterize the contemplated Forest Service actions as a burden on free exercise rights. The Indians have to show that the area at issue is indispensable and central to their religious practices and beliefs, and that the proposed governmental actions would seriously interfere with or impair those religious practices. Wilson v. Block, 708 F.2d at 742-44; Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980); Crow v. Gullet, 541 F.Supp. 785, 792 (D.S.D.1982), aff'd, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). The district court here found that [f]or generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies." }, { "docid": "11793051", "title": "", "text": "will violate the rights of the Indian plaintiffs to practice their religion. Specifically, plaintiffs assert that the Chimney Rock area is sacred “high country” to the Yurok, Karok, and Tolowa Indians, who use the area for religious rites and for the training of “medicinal and spiritual practitioners who serve these [Indian] communities.” The construction of the road, they argue, and the accompanying disruptive intrusions such as logging activity and increased road traffic, are “totally incompatible with the ritual uses of this sacred country.” Plaintiffs submit numerous affidavits, as well as archeological and ethnographic studies commissioned by the Forest Service, to support their claim that this “sacred region” is at “the very core of Northwest [Indian] religious beliefs and practices.” The First Amendment, of course, protects unorthodox as well as orthodox religious belief and practice. Thomas v. Review Bd. of the Indian Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975). Furthermore, the fact that the asserted religious activity occurs on public land does not necessarily defeat plaintiffs’ claim. See Badoni v. Higginson, 638 F.2d 172, 176 (10th Cir.1980); Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1164 (6th Cir.1980). The government must manage its property in a manner that does not needlessly impair the ability of its citizens to exercise their religious freedom. See Badoni, supra, at 176, 179 (government must not deny exercise of First Amendment rights compatible with public use of public property). The proposed completion of the G-0 road does not, however, unlawfully burden the Indian plaintiffs’ exercise of their religion. Although the government must allow them reasonable access to public lands in order to follow their religious practices, defendants are not obligated to control or limit public access to public lands in order to facilitate those practices. Thus, the use by a relatively few persons of public lands for religious purposes does not release the government from its statutory responsibility to manage such lands for the benefit of the public at large. See Badoni, supra, at 179; Sequoyah, supra, at 1164-65;" }, { "docid": "14630582", "title": "", "text": "[hereinafter cited as Note, Indian Religious Freedom]. These problems have been resolved through the adoption of a two-step analysis. First, the plaintiffs must show that the area at issue is central and indispensable to their religious practices and that the threatened activity would seriously interfere with or impair those practices. See Wilson v. Block, 708 F.2d 735, 742-44 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). Second, if the plaintiffs meet their burden, the government must show an overriding government interest that cannot be served through less restrictive alternatives. See id. at 740; Badoni v. Higginson, 638 F.2d 172, 176-77 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Four circuits have considered claims similar to those raised by the Indian plaintiffs in this case. In all four cases, the claims were rejected. In Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980), the Cherokee tribe sought to enjoin the construction of the Tellico Dam in Tennessee. The tribe asserted that the completion of the project would flood their “sacred homeland,” destroying sacred sites, medi cine gathering sites, holy places, and cemeteries and disturbing “the sacred balance of the land.” Id. at 1160. The Sixth Circuit rejected the tribe’s claims, holding that the tribe had failed to establish that their use of the lands was central to the practice of their religion. Id. at 1164-65. The court noted that it was “damage to tribal and family folklore and traditions, more than particular religious observances, which appears to be at stake.” Id. at 1164. The Tenth Circuit addressed a similar issue in Badoni v. Higginson, 638 F.2d 172 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). In Badoni, the tribe challenged the construction of the Glen Canyon Dam in Utah and the management of Rainbow Bridge National Monument by the National Park Service. The dam created Lake Powell, which the tribe claimed had drowned some of their gods and cut off tribal access to" }, { "docid": "14630581", "title": "", "text": "action to enjoin the Forest Service from beginning those projects. On May 24, 1983, the district court entered a permanent injunction against the Forest Service. The relevant portions of the injunction are as follows: IT IS HEREBY ORDERED that defendants are permanently enjoined from constructing the Chimney Rock Section of the G-0 road and/or any alternative route for that Section which would traverse the high country____ IT IS FURTHER HEREBY ORDERED that defendants are permanently enjoined from engaging in commercial timber harvesting and/or from constructing any logging roads in the high country ... pursuant to the 1981 Implementation Plan ... or any other land management plan. 565 F.Supp. at 606. II Applicable Law The Indian plaintiffs are attempting to use the free exercise clause to bar the development of public lands. Such attempts have raised difficult problems for first amendment theory. See Stambor, Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni, and the Drowned Gods, 10 Am.Ind.L.Rev. 59 (1982); Note, Indian Religious Freedom and Governmental Development of Public Lands, 94 Yale L.J. 1447 (1985) [hereinafter cited as Note, Indian Religious Freedom]. These problems have been resolved through the adoption of a two-step analysis. First, the plaintiffs must show that the area at issue is central and indispensable to their religious practices and that the threatened activity would seriously interfere with or impair those practices. See Wilson v. Block, 708 F.2d 735, 742-44 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). Second, if the plaintiffs meet their burden, the government must show an overriding government interest that cannot be served through less restrictive alternatives. See id. at 740; Badoni v. Higginson, 638 F.2d 172, 176-77 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Four circuits have considered claims similar to those raised by the Indian plaintiffs in this case. In all four cases, the claims were rejected. In Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980), the Cherokee tribe sought to enjoin the construction of the Tellico" }, { "docid": "14630578", "title": "", "text": "until they complete and distribute studies demonstrating that such activities will not violate water quality standards of FWPCA. . Appellants’ Motion to Supplement the Record on Appeal with material not presented to the district court either before or after the court rendered its opinion is DENIED. BEEZER, Circuit Judge, dissenting in part: I concur in Parts II, III, and IV of Judge Canby's majority opinion. I also concur in Part V to the extent that it is based on the discussion in Parts II, III, and IV. Because I conclude that the plaintiffs have not established a first amendment violation, I cannot concur in Part I. To the extent that the majority upholds the permanent injunction against timber harvesting and road construction in the “high country,” I respectfully dissent. I Background This action involves the proposed development of the Blue Creek Unit of Six Rivers National Forest. The Blue Creek Unit consists of 76,500 acres of mountainous land in the northwestern corner of California. The northeastern comer of the Blue Creek Unit, which is referred to as “the high country,” is considered sacred by several Indian tribes. The district court described the Indian plaintiffs’ use of the high country as follows: Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century and probably much earlier. Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator.” Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire" }, { "docid": "5069195", "title": "", "text": "that interest existed. Id. at 177. In addition, the court of appeals found that plaintiffs were not entitled to have tourists excluded from Rainbow Bridge National Monument, given the Park Service’s “strong interest in assur ing public access to th[at] natural wonder,” and statutory duty to do so. Id. at 178. In the present case, defendants concede that the Indian plaintiffs’ use of the high country for religious practices is entitled to First Amendment protection. The Indian plaintiffs’ claim that the high country is sacred is both sincerely held and “rooted in religious belief.” Yoder, supra, 406 U.S. at 215-16, 92 S.Ct. at 1533. The unorthodox character of those religious beliefs does not deprive them of the safeguards contained in the Free Exercise Clause. See, e.g., Thomas, supra, 450 U.S. at 714, 101 S.Ct. at 1430. Similarly, plaintiffs’ lack of a property interest in the high country does not release defendants from the constitutional responsibilities the First Amendment imposes on them. See Badoni, supra, 638 F.2d at 176; Sequoyah, supra, 620 F.2d at 1164. 1. A Burden on the Free Exercise of Religion ' The first step in evaluating plaintiffs’ claim based upon their constitutional right to the free exercise of religion is to determine whether the challenged actions do burden that right. The evidence establishes that construction of the Chimney Rock Section and/or implementation of the Management Plan would seriously impair the Indian plaintiffs’ use of the high country for religious practices. For generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion. See, e.g., Sequoyah, supra, 620 F.2d at 1164; Hopi, supra, 8 ILR at 3075. For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential" }, { "docid": "5069188", "title": "", "text": "Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator” (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine” (Theo.Rpt. at 46). The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community (Tr. at 110-13; Theo.Rpt. at 417). Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines (Tr. at 237-39). They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances (Id.; Theo.Rpt. at 52-58). For a number of reasons, the Indian plaintiffs contend that construction of the Chimney Rock Section would violate the sacred qualities of the high country and impair its successful use for religious purposes. First, they claim, visibility of the road from religious sites would damage the pristine visual conditions found in the high country that are essential for its religious use (Tr. at 239; Theo.Rpt. at'419-20). (The Chimney Rock Section would dissect the high country, and separate Chimney Rock to the north from Peak 8 and Doctor Rock to the south.) Second, increased aural disturbances from construction and use of the road would similarly impair the success of religious and medicinal quests into the high country. Third, environmental degradation of the high country resulting from construction of the road would erode the religious significance of the areas (Theo.Rpt. at 420). Finally, religious use of the area would be impaired by increased recreational use resulting from construction of the Chimney Rock Section (Theo.Rpt. at 418-19). The Management Plan calls for the harvesting of" }, { "docid": "14630573", "title": "", "text": "they have (1) prepared an EIS evaluating the wilderness potential of the Blue Creek Area together with the Eight-mile and Siskiyou Roadless Areas; and (2) completed studies demonstrating that the proposed logging activities would not reduce the supply of anadromous fish in those portions of the Klamath River that flow through the Hoopa Valley Indian Reservation. In all other respects the decree of the district court is affirmed. . A \"roadless area” is defined as \"[a]n area of undeveloped Federal land within which there are not improved roads maintained for travel by means of motorized vehicles intended for highway use.\" FSM § 8260(B)(3)(a)(1). . In view of our disposition of this appeal, we do not find it necessary to address the issues raised by plaintiffs-appellees. . We review de novo the question whether the Indian plaintiffs have a valid first amendment claim. See Fraser v. Bethel School District, No. 403, 755 F.2d 1356, 1359 n. 2 (9th Cir.), cert. granted, — U.S. —, 106 S.Ct. 56, 88 L.Ed.2d 45 (1985); United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). . This finding distinguishes this case from Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983), where tribal free exercise objections to development of the San Francisco Peaks in Arizona were rejected because the plaintiffs failed to show that the development would burden their religious beliefs or practices. Id. at 745. . We find no merit in the government’s claim that the district court set the boundaries of the high country area to encompass an area greater than that established by plaintiffs at trial. Our review of the record reveals that the evidence fully supports the designation of boundaries in the district court’s injunction. . The dissent suggests that the report of Dr. Theodoratus, relied upon by the district court, took an impermissibly broad view of religion. The Theodoratus Report, however, did deal with matters discretely categorized as \"religious,” although it complained of the artificiality of" }, { "docid": "11793050", "title": "", "text": "and John R. Bock, Secretary of the Department of Agriculture. The State of California, acting through its Native American Heritage Commission and Resources Agency, is the sole plaintiff in California v. Block, et al., C-82-5943 SAW. Defendants in this case are Secretary of Agriculture ■ Block, Forest Service Chief Peterson, and Zane G. Smith, Jr., Regional Forester of the California Region of the Forest Service. In order to obtain a preliminary injunction, plaintiffs must show either probable success on the merits and the possibility of irreparable injury or that serious questions regarding the merits are raised and the balance of hardships tips sharply in their favor. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). The Court has concluded, for reasons now to be stated, that the plaintiffs have not clearly met either of these standards and that the equities call for an early trial rather than now granting the motion for preliminary injunctive relief. 1. Re First Amendment Claims. Plaintiffs contend that construction of the Chimney Rock Section will violate the rights of the Indian plaintiffs to practice their religion. Specifically, plaintiffs assert that the Chimney Rock area is sacred “high country” to the Yurok, Karok, and Tolowa Indians, who use the area for religious rites and for the training of “medicinal and spiritual practitioners who serve these [Indian] communities.” The construction of the road, they argue, and the accompanying disruptive intrusions such as logging activity and increased road traffic, are “totally incompatible with the ritual uses of this sacred country.” Plaintiffs submit numerous affidavits, as well as archeological and ethnographic studies commissioned by the Forest Service, to support their claim that this “sacred region” is at “the very core of Northwest [Indian] religious beliefs and practices.” The First Amendment, of course, protects unorthodox as well as orthodox religious belief and practice. Thomas v. Review Bd. of the Indian Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975). Furthermore, the fact that the asserted religious activity occurs on" }, { "docid": "14630585", "title": "", "text": "visiting the Bridge act “in a respectful and appreciative manner.” ... Were it otherwise, the Monument would become a government-managed religious shrine. Id. at 179 (citation omitted). The Eighth Circuit addressed a similar claim in Crow v. Gullet, 706 F.2d 856 (8th Cir.1983), aff'g 541 F.Supp. 785 (D.S.D.1982), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). In Crow, two tribes challenged South Dakota’s management of a state park containing Bear Butte, an important religious site for the tribes. The tribes argued that (1) the development of the park had increased the number of tourists in the park, reducing the Butte’s spiritual value and impairing religious ceremonies; (2) the development of the park had restricted tribal access to the Butte; (3) their religious practices were impermissibly burdened by registration and permit requirements that restricted entry into the park; and (4) the state had failed to control the tourists, who disrupted the tribe’s religious practices. Id. at 858. Citing Badoni and Sequoyah, the district court rejected each argument. 541 F.Supp. at 791-93. The Eighth Circuit adopted the district court’s opinion. 706 F.2d at 858-59. The District of Columbia Circuit considered this issue in Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In Wilson, the Navajo and Hopi tribes sought to enjoin development of ski resorts in the San Francisco Peaks in Arizona. The tribes asserted that development of the Peaks “would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes.” Id. at 740. The tribe also asserted that development would impair their ability to pray, to conduct ceremonies, and to gather sacred objects such as fir boughs. Id. The District of Columbia Circuit rejected the tribe’s claims. The court noted that the development of the Peaks would not cause the tribes to be denied access to any sacred areas. Id. at 744. The court also concluded that development would not prevent the tribes from engaging in any religious" }, { "docid": "14630552", "title": "", "text": "to take any position on whether the Road should be completed. See H.R. Rep. No. 98-40, 98th Cong., 1st Sess. 32; S.Rep. No. 98-582, 98th Cong., 2d Sess. 29; 130 Cong.Rec. No. 113, pp. 18-19 (H.Rep. Sept. 12, 1984) (Remarks of Cong. Seiber-ling). ISSUES On this appeal we address the following issues raised by the Forest Service: (1) Whether the district court erred in enjoining road construction and timbering in the high country of the Blue Creek Unit on the ground that such activity would impermissibly burden the Indian plaintiffs’ first amendment right to the free exercise of their religion; (2) Whether the district court erred in holding that the EISs prepared for the road and land management plans failed adequately to discuss the effects on water quality of the proposed actions; (3) Whether the district court erred in holding that Forest Service’s proposed actions would violate the Federal Water Pollution Control Act and state water quality standards. DISCUSSION I. First Amendment The first amendment prohibits governmental actions that burden an individual’s free exercise of religion unless those actions are necessary to fulfill a governmental interest of the highest order that cannot be met in a less restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert v. Vemer, 374 U.S. 398, 403-09, 83 S.Ct. 1790, 1793-96, 10 L.Ed.2d 965 (1963). In this case the government challenges the district court’s conclusion that certain proposed Forest Service management decisions, if implemented, would impermissibly burden the Indian plaintiffs’ free exercise rights. Further, the government contends that even if its action would impose such a burden, it has demonstrated a governmental interest sufficient to override the Indians’ religious interests. A. Free Exercise Right To establish a constitutionally valid free exercise claim, the Indian plaintiffs have the initial burden of demonstrating that governmental actions create a burden on their rights. See School District of Abington Township v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct." }, { "docid": "5069186", "title": "", "text": "Based upon the evidence presented at trial, the Court finds that the challenged Forest Service decisions violate (1) the First Amendment of the Constitution of the United States; (2) NEPA and the Wilder-. ness Act; (3) the Federal Water Pollution Control Act; (4) Indian water and fishing rights on the Hoopa Valley Indian Reservation, and defendants’ trust responsibility towards those rights; and (5) the Administrative Procedure Act. This memorandum constitutes the Court’s findings of fact and conclusions of law. I. The First Amendment In reviewing the nature of the religious beliefs involved in this case, it must be remembered that their unorthodox character is no basis for denial of the protection of rights guaranteed by the Free Exercise Clause. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981). Thus, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Id. The northeastern corner of the Blue Creek Unit is considered sacred land by members of the Yurok, Karok, and Tolowa Indian tribes. This region is known as the “high country.” Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def.Ex. G-K, Theodoratus Report (hereinafter “Theo.Rpt.”), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs’ rights under the Free Exercise Clause of the First Amendment. The Indian plaintiffs’ use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter “Tr.”) at 267-68) and probably much earlier (Theo.Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes." }, { "docid": "14630574", "title": "", "text": "F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). . This finding distinguishes this case from Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983), where tribal free exercise objections to development of the San Francisco Peaks in Arizona were rejected because the plaintiffs failed to show that the development would burden their religious beliefs or practices. Id. at 745. . We find no merit in the government’s claim that the district court set the boundaries of the high country area to encompass an area greater than that established by plaintiffs at trial. Our review of the record reveals that the evidence fully supports the designation of boundaries in the district court’s injunction. . The dissent suggests that the report of Dr. Theodoratus, relied upon by the district court, took an impermissibly broad view of religion. The Theodoratus Report, however, did deal with matters discretely categorized as \"religious,” although it complained of the artificiality of such compartmentalization in the Indian context. Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest 44. The religious uses described by the Report unquestionably qualify as \"religious” by the narrowest definition. In addition, the Theo-doratus Report was not the only evidence of the religious uses of the high country; several witnesses testified to such use. . “Roy may no more prevail on his religious objection to the Government’s use of a Social Secuirty number for his daughter than he could on a sincere religious objection to the size or color of the Government’s tiling cabinets.” Roy, — U.S. at —, 106 S.Ct. at 2152. . See also 16 U.S.C. § 2281(b) (lands in Grand Canyon National Park set aside for Havasupai Indians for purposes to include ‘‘religious purposes”) Pub.L. 91-550, 84 Stat. 1437 (lands and Blue Lake in Carson National Forest set aside for Pueblo de Taos Indians for “traditional uses only, such as religious ceremonials”). . The government’s argument finds some support, albeit in a different context, in the opinion" } ]

[ { "docid": "22713490", "title": "", "text": "and unlawful possession of a weapon, in violation of N. J. Stat. Ann. §§2C:14-2, 2C:39-5(d) (West 1982 and Supp. 1986-1987), and was sentenced to eight years’ imprisonment. The Appellate Division of the Superior Court affirmed the convictions, and the New Jersey Supreme Court denied review. Respondent then, in 1985, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Finding that respondent’s Sixth Amendment rights had been violated at his trial, the District Court granted respondent’s petition and ordered that “a writ of habeas corpus shall issue unless within 30 days the State of New Jersey shall afford [respondent] a new trial.” 629 F. Supp. 511, 526 (1986). Petitioners subsequently moved the District Court to stay its order pending appeal. Relying on Carter v. Rafferty, 781 F. 2d 993, 997 (CA3 1986), the District Court determined that it could grant petitioners’ request only if they demonstrated that there was risk that respondent would not appear for subsequent proceedings. The court found that petitioners had failed to make such a showing and denied the motion. Petitioners then filed a motion in the United States Court of Appeals for the Third Circuit, seeking a stay of the District Court’s order releasing respondent. The Court of Appeals denied the motion by order dated May 27,1986. We granted certiorari to review the Court of Appeals’ denial of the stay, 479 U. S. 881 (1986), and now vacate and remand the case to the Court of Appeals. In Carter v. Rafferty, supra, the authority governing the Court of Appeals decision in this case, the court held that federal courts deciding whether to release a successful ha-beas petitioner pending appeal may consider the petitioner’s risk of flight, but not his danger to the community. The court observed that Rule 28(c) creates a presumption that a prisoner who has received habeas relief is entitled to release from custody. Moreover, the Carter court reasoned, the principal interests that a federal court may consider under Rules 23(c) and (d) are those of ensuring the appearance of the prisoner" } ]

[ { "docid": "5079059", "title": "", "text": "will be discovered by others, or forego the opportunity for electronic surveillance in order to avoid that risk. . In Ferrara, this court noted that in Ippolito, 774 F.2d at 1486-87, the Court of Appeals for the Ninth Circuit held that if a reasonable judge \"could have denied” the application if fully informed, the information at issue was material. Ferrara, 771 F.Supp. at 1305. Thus, this court stated \"material information” could be deemed \"to be information which reasonably might have prompted a district judge being asked to issue the warrant to have denied the request. If a reasonable judge either might or might not have authorized the requested electronic surveillance if fully informed, the information at issue is material, and its omission requires suppression.” Id. This statement was premised on the understanding that there may be matters on which reasonable judges would differ and if the government intentionally or with reckless disregard for the truth filed a false or misleading application, in order to deter such misconduct, suppression should be granted if any reasonable judge would have declined to authorize the warrant. In Ferrara and in the instant case the government argued that this formulation of \"materiality” is more favorable to the defendants than the standard established by Franks. Because it ultimately makes no difference to the outcome in the instant case, as in Ferrara, id. at 1305-06, the court has employed the standard for defining materiality advocated by the government. . The court recognizes that, as Flemmi argues, there are cases finding no standing that have stated that \"a defendant has standing to challenge electronic surveillance only if he can 'show that it was directed at him, that the Government intercepted his conversations or that the [intercepted] communications occurred at least partly on his premises.’ ” United States v. Gambale, 610 F.Supp. 1515, 1521 (D.Mass.1985) (Keeton, J.) (quoting United States v. Williams, 580 F.2d 578, 583 (D.C.Cir.1978)); United States v. Mavroules, 813 F.Supp. 115, 117 (D.Mass.1993) (Collings, Mag. J.) (quoting Gambale, supra). These statements are, however, dicta in decisions that did not address, let alone analyze, the issue presented" }, { "docid": "14973582", "title": "", "text": "alleged concerning the so-called Ferrara “hit.” The claim that the defendant authorized a murder or “hit” on Ferrara goes beyond Castagna’s testimony in the Bianco case. See Exhibit 24, Cas-tagna Test., May 15, 1991, Afternoon Session, p. 15. In that case, Castagna was asked who allegedly put out a contract on Vincent Ferrara. Castagna’s response was: “Billy Grasso, supposedly with Raymond Patriarca.” Id. Castagna evidently has no personal knowledge about this matter. He relies on what Milano purportedly said. I do not find that, given Castagna’s lack of personal knowledge, his affidavit contains sufficient indicia of reliability to be relied on to prove that any hit on Ferrara was contemplated and, particularly, that the defendant authorized any such hit. Once again, although this analysis does not depend on this in any way, I have not heard anything from Milano on this subject. In addition, there is no electronic surveillance indicating that the defendant authorized a hit on Ferrara. There is circumstantial evidence that the government did not believe there was a threat to Fer-rara’s life. Although it had extensive and impressive information of what was going on in the Patriarca Family in this period, the government did not warn Ferrara of any danger, as it warned Patriarca when he was in danger. So, as a year ago in my bail decision, I find that although Ferrara, Russo and Carrozza may have sincerely believed that Ferrara was in jeopardy, the government has not proven that any hit on Ferrara was actually planned or that the defendant authorized any murder attempt that Grasso was contemplating. See Patriarca, 776 F.Supp. at 602. The last item is the contention that the defendant should now be held responsible for the harboring of Alphonse Pérsico. See Presentence Report, p. 6, n. 1; Government’s Proffer of Evidence Concerning Sentencing Hearing, pp. 20-21. Essentially, the assertion is that members of the Patriarca Family harbored this fugitive Un-derboss of the Colombo LCN Family from 1980 to 1987. The government claims that the defendant is criminally responsible for this because the harboring of a member of one Family by another" }, { "docid": "5078885", "title": "", "text": "full and complete statement concerning necessity required by 18 U.S.C. § 2518(l)(e). They assert that § 2518(l)(c) is a solely statutory provision. Thus, defendants claim that Giordano rather than Franks provides the standard applicable to deciding their motion to suppress the 1984-85 electronic surveillance even if the judicially crafted exclusionary rule applies to violations of provisions of Title III that reflect constitutional requirements. In litigating Ferrara, the government in 1990 agreed with defendants’ present position, stating that “the necessity requirement of Title III is not of constitutional dimension .... The requirement that the applicant demonstrate that other investigative techniques have been exhausted or are unavailable is imposed by the Title III statute and not the Constitution. See Berger, supra.” Government’s Response to Defendant Patriarca and Ferrara’s Motions to Suppress All Evidence Derived from Oral Intercept Order in M.B.D. 89-1015 and to Dismiss the Indictment (Dec. 31, 1990) at 17 n.8. The government now asserts that § 2518(l)(c) is “rooted in the Fourth Amendment,” but also states that “the constitutional derivation of the necessity clause is not beyond dispute.” Government’s Submission Pursuant to Court’s March 28[sic], 1999 Order and Opposition to Defendant Flemmi’s Motion to Suppress the Fruits of Electronic Surveillance at Vanessa’s Restaurant (Apr. 6, 1999) at 37. See also Apr. 13, 1999 Tr. at 135 (government characterizes issue of whether a violation of § 2518(l)(c) is also a violation of the Fourth Amendment as “not clear-cut”). In Ferrara, this court found that § 2518(l)(c) was constitutional in character. 771 F.Supp. at 1288. As set forth below, the court finds that the jurisprudence since Ferrara supports this conclusion. The Fourth Amendment states that: [1] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and [2] no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons and things to be seized. U.S. Const, amend. IV. In Ferrara, this court wrote that: To obtain a warrant to intercept communications the government must make a" }, { "docid": "14964749", "title": "", "text": "defendants because they remain dangerous. As the government argued at sentencing, each of the defendants took a blood oath to the LCN as part of his initiation, swearing to commit crimes, including murder, on behalf of the Mafia if directed to do so. See, United States v. DiGiacomo, 746 F.Supp. 1176, 1184 (D.Mass.1990); Ferrara, 771 F.Supp. at 1270. The evidence and pleas demonstrated that each of the defendants acted on his oath and committed serious crimes in service of the Patriarca Family. In pleading guilty, the defendants neither acknowledged nor renounced their membership in the Mafia. See, footnote 2, supra. Thus, the court found that the defendants remain a threat to society. The court agreed with the government, however, that in view of the ages of the defendants, the agreed upon sentences should reasonably assure that “these five men, who were once the leadership of the Patriarca Family in Eastern Massachusetts, will forever be removed as a factor in organized criminal activity in New England.” Remarks of Assistant United States Attorney Jeffrey Auerhahn at April 29, 1992 Sentencing Hearing. The court did not fully agree with the government, however, in its assessment of the defendants’ character. The government contended at sentencing that the defendants had “no redeeming qualities.” Id. Although it did not use the term at sentencing, the government at various times throughout the case suggested that the defendants were most aptly described by the nickname ascribed to Ferrara, who was in the Superseding Indictment alleged to be also known as the “Animal.\" In part to justify the recommended downward departures, counsel for several of the defendants ardently argued that their clients had “redeeming characteristics,” including “love and affection for those close to them.” Remarks of Oscar Goodman, Esq. at April 29, 1992 Sentencing Hearing. In the course of prolonged and intensive pretrial proceedings, the court, among other things, sought to understand the defendants it was being called upon to judge. This task would, perhaps, have been easier if it were indeed appropriate to view the defendants simply as “animals.” The court, however, was convinced that such a view" }, { "docid": "5078963", "title": "", "text": "was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. 389 U.S. at 352, 88 S.Ct. 507. See also Fishman & McKenna, supra, § 2.15 n.56 at 2-19; Carr, supra, § 3.2(b) at 3-14. Prior to the 1998 decision in Carter, the question whether the reasonable expectation of privacy standard should be employed in interpreting § 2510(2) was not viewed by the parties or the court as having any significance in the circumstances of the instant case. However, this has now become an issue that is material to the question of whether DeLuca has standing to maintain his motion to suppress the electronic surveillance conducted at 34 Guild Street. In Ferrara, the government did not contend that the defendants who were intercepted at 34 Guild Street lacked standing to maintain their motion to suppress based on Title III. Nor did the government base its claim that no Fourth Amendment violation had occurred on the assertion that the defendants who were intercepted did not have a justifiable expectation of privacy with regard to their discussion at that location. Thus, with regard to Title III the court simply held that, “[e]ach of those [defendants] intercepted is an ‘aggrieved person’ with standing to litigate this motion to suppress. See §§ 2510(11) and 2518(10)(a).” Ferrara, 771 F.Supp. at 1281. With regard to the question of whether the Order authorizing the roving bug was unconstitutional as applied, this court in Ferrara found that defendants lacked standing to assert that the entry to install listening devices injured their rights because they “had no possessory interest or reasonable expectation of privacy concerning 34 Guild Street before they arrived there on October 29, 1989.” Id. at 1292. The court added that: The Fourth Amendment does, however, apply to the defendants’ conversations while at 34 Guild Street" }, { "docid": "21061169", "title": "", "text": "to run concurrent withMereurio’s Georgia sentence. With regard to Donati, the defendants have presented evidence that he was a very close associate of Ferrara, often serving as his driver and attending meetings with Ferrara and his counsel. Defendants’ Offer of Proof, at 5. After Donati was murdered in September 1991, it was reported that: “One source familiar with the investigation [of his death] said Donati was slain after word leaked out that he had agreed to become a government witness.” David Liscio, Revere Man Murdered for Helping FBI Probe, Lynn Item, Oct. 1, 1989, at 1. Moreover, the government has submitted a bill of particulars listing 176 alleged members of the RICO Enterprise alleged in this case. Although well known as a close associate of Ferrara’s, Donati is not included on that list. This omission suggests that he may have been cooperating with the government because an informant operating undercover is not a co-conspirator. See Eisenberg, 596 F.2d at 527. The foregoing represents a substantial preliminary showing by defendants that Mercurio and Donati were FBI informants on October 27, 1989, when the government applied for the roving warrant that resulted in the interception of the Mafia induction ceremony on October 29, 1989 at 34 Guild Street. If DiStefano is correct, Mercurio and Donati would have learned the address of the ceremony on Wednesday, October 25, 1989. If true, this would draw into question the court’s prior finding that the government did not learn the address until October 27, 1989, and, therefore, would require the court to reconsider its finding that the government’s failure to disclose to the court the information it received regarding 34 Guild Street was a good faith, reasonable error attributable to the pace of activities on October 27, 1989, rather than a deliberate or reckless disregard of its duties under 18 U.S.C. § 2518(ll)(a)(ii). In addition, any information that Mercurio and/or Donati gave the government about the arrangements being made to utilize 34 Guild Street could be material to whether a fully informed judge would have authorized a roving warrant. See Ferrara, 771 F.Supp. at 1310-11. Moreover," }, { "docid": "14973469", "title": "", "text": "constituted relevant conduct for the purpose of calculating Carrozza’s Guidelines. The government also did not assert that any upward departures were appropriate. Instead, the government agreed to downward departures from life sentences for Vincent Ferrara and Joseph Russo. Id. at 6-7. After briefing and hearing, I found the plea agreements to be reasonable and imposed the sentences that the parties had agreed upon. Id. at 13-22. With regard to Patriarca’s sentencing, after the defendant pled guilty, the government asserted that there were seven crimes, including the Limoli murder, which constituted relevant conduct attributable to the defendant and substantially increasing his Offense Level, thus eliminating the need for any departure. The scope of the relevant conduct included in the Base Offense Level in a RICO case is an unprecedented issue, at least in the reported cases. It is also an issue with significant consequences for the defendant in this case. The issue has the potential to raise the sentence in this case from the seven year range that the Probation Department originally calculated, to a life sentence, as I see it, or a 30 year sentence as the government calculates it. The defendant responded that the government’s position regarding relevant conduct is incorrect as a matter of law. The defendant also asserted that the government could not prove as a matter of fact the defendant’s complicity in the crimes on which it was relying. The defendant further argued that the government’s position, if persuasive, would violate the defendant’s rights to due process and to not being subject to any ex post facto law. See U.S. Const. Art. I, § 9; Am. XIV; Defendant’s Second Supplemental Sentencing Memorandum, filed March 24, 1992, pp. 11-14; 16-17. The defendant also had a number of other objections. I received a series of increasingly refined memoranda from the parties. I also received numerous affidavits and voluminous documentary evidence. I held conferences on March 3 and 26, April 8 and 9, and May 5, 11 and 12, 1992. As stated in my May 11, 1992 order, I found it was appropriate to hear testimony from Philip Leonetti" }, { "docid": "21061168", "title": "", "text": "the event. However, when Mercurio was indicted on November 16, 1989, with Patriarca and others, he was not arrested. Rather, he was ostensibly a fugitive until apprehended and convicted for drug trafficking in Georgia in 1995. Flemmi states, based on his personal knowledge and conversations with agents of the Boston Office of the FBI, that Mercurio began cooperating with the FBI after the raid on Vanessa’s; was acting as an informant for the FBI on October 29, 1989; was given advance notice of the forthcoming charges against him and allowed to flee; and reported to his FBI handlers in Boston while a fugitive. April 27, 1997 Affidavit of Stephen J. Flemmi. Defendants also claim that Mercurio was seen with FBI Special Agent Michael Buckley. Defendants’ Offer of Proof, at 4. After Mercurio was apprehended and convicted in Georgia, the government entered into a binding plea agreement, pursuant to Fed.R.Crim.P. 11(e)(1)(c), with him. This court granted a downward departure to impose the agreed upon 110 month sentence, which in accordance with the government’s plea agreement was to run concurrent withMereurio’s Georgia sentence. With regard to Donati, the defendants have presented evidence that he was a very close associate of Ferrara, often serving as his driver and attending meetings with Ferrara and his counsel. Defendants’ Offer of Proof, at 5. After Donati was murdered in September 1991, it was reported that: “One source familiar with the investigation [of his death] said Donati was slain after word leaked out that he had agreed to become a government witness.” David Liscio, Revere Man Murdered for Helping FBI Probe, Lynn Item, Oct. 1, 1989, at 1. Moreover, the government has submitted a bill of particulars listing 176 alleged members of the RICO Enterprise alleged in this case. Although well known as a close associate of Ferrara’s, Donati is not included on that list. This omission suggests that he may have been cooperating with the government because an informant operating undercover is not a co-conspirator. See Eisenberg, 596 F.2d at 527. The foregoing represents a substantial preliminary showing by defendants that Mercurio and Donati were FBI" }, { "docid": "581490", "title": "", "text": "residual clause also violates due process, and that this conclusion ought retroactively apply to Ramirez’s collateral attack on his sentencing. Mot. Vacate, ECF No. 119; Addendum Supp. 28 U.S.C. § 2255 Mot. 2, ECF No. 120; Def.’s Reply Mem. Law Supp. Mot. § 2255 Vacate, Set Aside, Correct Sentence Person Federal Custody (“Def.’s Mem.”) 3, ECF No. 134. The government opposed Ramirez’s petition. Gov’t’s Supplemental Opp’n Def.’s Mot. Relief 28 U.S.C. § 2255 (“Gov’t’s Opp’n”) 2-4, ECF No. 131. In its memorandum, the government conceded that Johnson applies retroactively to cases involving the ACCA, id. at 2, and that, under Johnson, the Guidelines’ Residual Clause is invalid, id. at 3. It argued, nevertheless, that “the application of Johnson to the Sentencing Guidelines’ residual clause produces procedural changes in the sentencing process that are not retroactive on collateral review.” Id. In the time since the parties filed their briefs and the Court granted Ramirez’s motion at the February 25, 2016, hearing, the Supreme Court confirmed the retroac-tivity of Johnson as applied to the ACCA in Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). The retroactive application of Johnson to the Guidelines’ Residual Clause, however, has not yet been addressed by the Supreme Court or any of the Courts of Appeal. II. ANALYSIS This case presents the question whether the Supreme Court’s decision in Johnson ought apply retroactively to invalidate the Guidelines’ Residual Clause on collateral review of Ramirez’s sentence under 28 U.S.C. § 2255. Accordingly, the Court first analyzes the merits of Ramirez’s con stitutional claim — the due process vaguer ness challenge to the Guidelines’ Residual Clause — although the parties agree that the Guidelines’ Residual Clause is unconstitutionally vague. The Court then proceeds to conduct the retroactivity analysis for Johnson, as applied to the Guidelines, under the relevant framework for determining retroactivity provided by the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 108 L.Ed.2d 834 (1989). See Ferrara v. United States, 456 F.3d 278, 288 (1st Cir.2006). A. Due Process Although the government conceded that the Guidelines’ Residual" }, { "docid": "4009711", "title": "", "text": "of the Doe disciplinary proceedings to New Mexico, the United States brought suit against Ms. Ferrara, in her official capacity, in the District Court for the District of Columbia. In this action, it sought both an injunction prohibiting her from proceeding with the prosecution of Mr. Doe and a declaration that the Supremacy Clause prohibits her from taking any action against a Department of Justice employee for the performance of his duties consistent with federal law. The Government argued, as did Mr. Doe in the removal proceeding, that the Supremacy Clause prevents state officials from regulating the conduct of federal prosecutors when such regulation would conflict with their federal duties. Ms. Ferrara moved to dismiss, arguing that the district court lacked personal jurisdiction over her, that the venue was improper, that the Government was collaterally es-topped from making its Supremacy Clause argument as a result of the New Mexico district court decision, and that the court should abstain pending the outcome of the New Mexico disciplinary proceedings against Mr. Doe. United Stales v. Ferrara, 847 F.Supp. 964, 966 (D.D.C.1993). Although Judge Johnson determined that Ms. Fer-rara’s venue, collateral estoppel, and abstention arguments were meritless, she granted the motion to dismiss for want of personal jurisdiction. Id. at 967-68 & n. 3. The United States now appeals, renewing its Supremacy Clause claim and arguing that the district court did, in fact, have personal jurisdiction over Ms. Ferrara. Ms. Ferrara cross-appeals, claiming that the court erred by failing to recognize the merits of her collateral estoppel and abstention arguments. Because we agree that the district court lacked personal jurisdiction over Ms. Fer-rara, we will address neither the issues raised by her in her cross-appeal nor the Supremacy Clause argument advanced by the Government. II. PERSONAL Jurisdiction A. “Minimum Contacts” Analysis A personal jurisdiction analysis requires that a court determine whether jurisdiction over a party is proper under the applicable local long-arm statute and whether it accords with the demands of due process. See, e.g., Founding Church of Scientology of Washington, D.C. v. Verlag, 536 F.2d 429, 432 (D.C.Cir.1976). As there is no" }, { "docid": "15460070", "title": "", "text": "valid waiver.”). And, second, while the court did not find that the officers deliberately delayed Barone’s arraignment from Friday afternoon to Monday morning, Order at 28, it did find that “the prolonged detention magnified the inherent coercion of being held in custody,” id. at 46. In sum, the focus on danger, the failure to repeat warnings, the increasing length of incarceration, the .officers’ efforts to ingratiate themselves, and the number of encounters deliberately aimed at eliciting cooperation on the same crime are sufficient to support a finding that this was a case “where the police failed to honor a decision of a person in custody to cut off questioning, ... by persisting in repeated efforts to wear down his resistance and make him change his mind,” Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327-28. We therefore affirm the district court’s order suppressing the statements made by Barone about the Limoli murder on Saturday, July 23, 1988 through Monday, July 25, 1988. III. The suppression order did not directly address the admissibility of a statement the police officers claim that Barone made spontaneously in the car, telling the officers that they wanted Ferrara, not him. See Section I, supra, at pp. 3-4. As noted above, the testimony at the hearing about this comment was conflicting, with Barone contending that it was the officers who brought up Ferrara’s name. We agree with the government that a remand is necessary to allow the district court to make explicit findings on this point. If the court finds that Barone volunteered a statement about Ferrara before invoking his right to silence, the statement would, of course, be admissible. See Miranda, 384 U.S. at 478, 86 S.Ct. at 1629-30. Affirmed in part and remanded in part. . In so doing, we rely heavily on the district court’s description of the relevant events. Although the government challenges certain of the court’s inferences, it does not seriously dispute the court’s findings on what actually occurred during the four days at issue. . Barone fled Boston in 1985 because he believed Ferrara planned to have him killed as" }, { "docid": "21015516", "title": "", "text": "learned on October 25, 1989 that the induction ceremony would be held at 34 Guild Street on October 29, 1989, this court would be required to reconsider its findings in denying the motion to suppress in United States v. Ferrara, 771 F.Supp. 1266 (D.Mass.1991), that the violations of 18 U.S.C. § 2518 that the court found resulted from good faith errors, id. at 1309, and, in any event, were not material to whether a roving warrant would have been issued by a judge who had all of the legally required information, id. at 1310-11. See May 22, 1997 Memorandum and Order at 33-34. More significantly, the government’s memorandum in support of its motion to reconsider does not address directly the important point that the omitted fact that a government informant was planning to attend the October 29, 1989 induction ceremony arguably could have influenced a judge to have found that no electronic surveillance, roving or fixed, was justified. Id. at 34. The government does, however, suggest that, if necessary, it will stipulate to certain facts, including the facts that it had a confidential informant at the induction ceremony, but that he was unwilling to testify. Gov. Motion for Reconsideration at 10 and Attachment A. The government also proposes that the defendants stipulate to the government’s version of the date on which it learned the location of the induction ceremony. Id. The short answer to this proposal is that at the June 3, 1997 hearing the defendants refused to accept the suggested stipulation. In the context of this case, their decision is not only dispositive of this issue, their skepticism about the reliability of the government’s representations is understandable. As this court found previously, in 1991 the government initially attempted to mislead the court and the defendants in Ferrara concerning the existence of the issue of whether the government had failed to provide the issuing judge all of the legally required information with regard to whether roving electronic surveillance should be authorized. Ferrara, 771 F.Supp. at 1308 & n. 16. Questions concerning the reliability of the government’s representations in connection with" }, { "docid": "6325654", "title": "", "text": "by 2 levels under § 2D1.1(b)(1) — which, of course, would increase the guideline imprisonment range for that offense. That, of course, would have been the result had Woodhouse never been convicted of the § 924(c)(1) charge at the time of the original sentencing. The Court was initially skeptical as to whether the Government could resentence a successful § 2255 petitioner on a valid conviction — the conspiracy to distribute LSD conviction — which went unchallenged in the § 2255 motion. So, in the order allowing Woodhouse’s § 2255 motion and vacating the § 924(c)(1) conviction, the Court appointed counsel for Woodhouse and set a schedule for the parties to brief the resentencing issue. Something interesting happened shortly thereafter, which, as will be seen, adds a subtle wrinkle to the Court’s analysis. To review, Woodhouse originally received a total sentence of 127 months of imprisonment — 67 months were allocated to the conspiracy to distribute LSD conviction and 60 months were allocated to the § 924(c)(1) conviction. The moment the Court allowed the § 2255 motion and amended the judgment to reflect the vacated § 924(c)(1) conviction, technically, Woodhouse had a total sentence of 67 months of imprisonment — the amount of imprisonment time allocated to the conspiracy to distribute LSD conviction. After subtracting Woodhouse’s credit for “good time,” he had served more than 67 months in prison at the time of the Court’s order. Thus, technically, he had completed his imprisonment period for the conspiracy to distribute LSD conviction. Because his imprisonment period was now completed, the Bureau of Prisons notified the Government that it had to release Wood-house. The Government immediately filed a motion to stay the sentence until the resentencing issue was resolved. The Court scheduled an emergency telephone conference with the Government and the Federal Public Defender’s Office — Woodhouse’s appointed counsel. At the time of the telephone conference, however, the Court was informed that the Bureau of Prisons had just released Woodhouse. The Government agreed not to seek to arrest Woodhouse pending the resolution of the resentencing issue, thus, the Government’s motion to stay the" }, { "docid": "8094521", "title": "", "text": "to run concurrently with an earlier one, may be treated as having commenced before the date it was imposed). Cf. United States v. Long, 823 F.2d 1209, 1212 (7th Cir.1987) (acknowledging wide discretion of district judges in fashioning sentences). But see Shelvy v. Whitfield, 718 F.2d 441 (D.C.Cir.1983) (second sentence ordered to run concurrently with an existing sentence runs with the remainder of the earlier imposed sentence); United States v. Flores, 616 F.2d 840 (5th Cir.1980) (defendant’s erroneous construction of the meaning of a concurrent sentence insufficient to invalidate plea bargain or to trigger hearing); Wilson v. Henderson, 468 F.2d 582 (5th Cir.1972) (sentence cannot commence prior to day of pronouncement even if it is to be served concurrently with another sentence already being served). In a recent case whose facts closely resemble this one, appellant Louis Ferrara claimed he was not sentenced in accordance with his reasonable understanding of a plea agreement. United States v. Ferrara, 954 F.2d 103 (2d Cir.1992). In exchange for his guilty plea, the government agreed to “ 'recommend, at the time of sentencing, that a sentence of imprisonment be imposed concurrent to that federal sentence of imprisonment which [Ferrara] is currently serving.’ ” Id. at 104. At sentencing, Ferrara’s lawyer asked the district court judge whether the sentence would begin retroactively, commencing on the day eighteen months earlier when the first sentence started to run. “ ‘No,’ ” responded the judge, \" 'it runs concurrent from today.’ ” Id. Based on the record, the court found that Ferrara reasonably could have understood and expected concurrent sentences to end, or at least to begin, on the same date. Id. at 105. Stating that \"a plea agreement must follow the reasonable understandings and expectations of the defendant with respect to the bargained-for sentence”, the court vacated Ferrara’s conviction and remanded with instructions that he be allowed to withdraw his plea. Id. The meaning of the word \"concurrent\", as Ferrara claimed, was ambiguous. .Nor does 18 U.S.C. § 3568 (in effect prior to the enactment of § 3585) clarify matters. Although neither party mentions it, that provision" }, { "docid": "18928735", "title": "", "text": "years. The court was first introduced to the Limoli matter in 1990, when the government, in attempting to secure Spagnolo’s pretrial detention, erroneously asserted that he participated in killing Limoli. See DiGiacomo, 746 F.Supp. at 1189. The Limoli murder was also a prominent event in the pretrial proceedings concerning Patriarca and his co-defendants, including Pasquale Barone’s successful effort to suppress certain evidence. See United States v. Barone, 968 F.2d 1378, 1379 (1st Cir.1992). This court also dealt with the Limoli murder in the sentencing of Ferrara, who admitted to ordering it. See United States v. Carrozza, 807 F.Supp. 156, 159 (D.Mass.1992). Limoli’s death was focused upon in Patriarca’s initial sentencing. Patriarca, 807 F.Supp. at 203-05. This court subsequently presided, at the eleven week trial of Barone, who was convicted of participating in the Limoli murder and sentenced to life in prison. The court has, nevertheless, carefully considered the arguments and evidence relating to the Limoli murder presented in connection with Patriarca’s resentencing. The court once again finds the basic facts to be as they were determined to be at the defendant’s initial sentencing and, addressing the questions posed by the Court of Appeals for the First Circuit to be decided on remand, concludes that the Limoli murder is not relevant conduct of Patriarca. More specifically, the court finds that in 1985 Spagnolo was a member of the Patriar-ca Family residing in Boston. Spagnolo, like Carrozza, was then personally and directly dealing cocaine. Spagnolo, however, concealed this violation of Family rules from Patriarca. Patriarca did not have reason to foresee that Spagnolo would become involved personally with distributing cocaine. In 1985, such conduct was outside the scope of criminal activity Patriarca agreed to jointly undertake and was not a reasonably foreseeable consequence of that agreement. In 1985, Spagnolo had cocaine belonging to him hidden in an apartment. It had been placed there for Spagnolo by Frank Sa-lemme, Jr., who was not a member of the Patriarca Family. At that time, Limoli was an associate of Ferrara. Like Spagnolo, Ferrara was a soldier in the Boston faction of the Patriarca Family, who" }, { "docid": "8094522", "title": "", "text": "the time of sentencing, that a sentence of imprisonment be imposed concurrent to that federal sentence of imprisonment which [Ferrara] is currently serving.’ ” Id. at 104. At sentencing, Ferrara’s lawyer asked the district court judge whether the sentence would begin retroactively, commencing on the day eighteen months earlier when the first sentence started to run. “ ‘No,’ ” responded the judge, \" 'it runs concurrent from today.’ ” Id. Based on the record, the court found that Ferrara reasonably could have understood and expected concurrent sentences to end, or at least to begin, on the same date. Id. at 105. Stating that \"a plea agreement must follow the reasonable understandings and expectations of the defendant with respect to the bargained-for sentence”, the court vacated Ferrara’s conviction and remanded with instructions that he be allowed to withdraw his plea. Id. The meaning of the word \"concurrent\", as Ferrara claimed, was ambiguous. .Nor does 18 U.S.C. § 3568 (in effect prior to the enactment of § 3585) clarify matters. Although neither party mentions it, that provision states in pertinent part: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.” To the extent that they designate when a sentence commences, statutes and case law interpreting them are besides the point. At issue here is what the prosecutor promised Car-nine and what rights he reasonably believed he had contracted to receive. . In at least one other circuit, neither a defendant's belief as to the provisions of a plea agreement nor an attorney’s misrepresentations to his client regarding the agreement control its scope or enforceability. See, e.g., United States v. Caporale, 806 F.2d 1487, 1517 (11th Cir.1986), certiorari denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763. . Pursuant to this provision, the attorney for the government may \"make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon" }, { "docid": "12828702", "title": "", "text": "SELYA, Circuit Judge. It is axiomatic that the government must turn square corners when it undertakes a criminal prosecution. This axiom applies regardless of whether the target of the prosecution is alleged to have engaged in the daintiest of white-collar crimes or the most heinous of underworld activities. It follows that courts must be scrupulous in holding the government to this high standard as to sympathetic and unsympathetic defendants alike. The case before us plays out against the backdrop of these aphorisms. More than ten years after he pleaded guilty to racketeering and related charges, petitioner-appellee Vincent Ferrara learned that the government had failed to disclose important exculpatory evidence to him beforehand. He sought relief under 28 U.S.C. § 2255, imploring the district court to vacate the remainder of his 22-year incarcerative sentence. The district court, in the person of the able judge who originally had sentenced the petitioner, granted his petition. In arriving at this result, the district court relied principally on the rule announced in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Ferrara v. United States, 384 F.Supp.2d 384, 432 (D.Mass.2005). Although our reasoning differs somewhat— we rely solely on the operation of the rule announced in Brady v. United States, 397 U.S. 742, 748, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) — we affirm the judgment below. I. BACKGROUND Because the government is appealing an order granting a petition for post-trial relief pursuant to 28 U.S.C. § 2255, we begin by describing the facts upon which the district court based its decision. We supplement those facts, as necessary, with other facts contained in the record. On March 22, 1990, a federal grand jury sitting in the District of Massachusetts returned a superseding indictment charging eight men, including the petitioner (an alleged member of the Patriarca Family of La Cosa Nostra ), with racketeering and related offenses. The petitioner was named in thirty-five of the sixty-five counts. The centerpiece of the superseding indictment — counts 1 and 2 — charged the petitioner and his codefendants with conspiring to participate" }, { "docid": "12828718", "title": "", "text": "investigation ensued. By then, the petitioner and Barone already had filed separate motions under 28 U.S.C. § 2255, advancing various grounds for post-conviction relief. Recognizing the potential relevance of Jordan’s allegations to the pending petitions, the government at long last disclosed the information concerning Jordan’s 1991 recantation. The district court allowed amendment of the pending section 2255 motions to encompass the newly discovered evidence. The petitioner filed his amended motion on July 15, 2003, arguing in pertinent part that the government had failed to disclose material exculpatory evidence and that its misconduct had induced his decision to plead guilty. The court held an evidentia-ry hearing at which Jordan, Coleman, Buckley, Sullivan, and Auerhahn testified. In a post-hearing memorandum, dated April 6, 2004, the government argued, for the first time, that the district court would need to recognize a new constitutional rule granting defendants a due process right to receive exculpatory evidence before pleading guilty in order to afford the petitioner relief. Doing so, the government maintained, would transgress the nonretroactivity principle enunciated in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The petitioner denounced this proposition as both untimely and legally flawed. The court agreed; it ruled that the government had waived its Teague defense by not timely asserting it and went on to find that, in any event, the petitioner’s claim was not Teague-barred. Ferrara, 384 F.Supp.2d at 421. The merits-based aspect of the lower court’s Teague ruling was grounded on two rules of constitutional law that, the court said, were well-established by 1992 (when the petitioner’s conviction became final). First, the court found that Jordan’s recantation constituted exculpatory evidence that tended to negate the petitioner’s guilt or, alternatively, could have been used to impeach a crucial prosecution witness. Id. at 423. Thus, it concluded that, under Brady v. Maryland and its progeny, the government’s conduct violated the petitioner’s due process rights. See id. at 432. Second, the court found that the government’s nondisclosure constituted misconduct that deprived the petitioner of the ability to enter a knowing and voluntary plea and, therefore, transgressed" }, { "docid": "6325655", "title": "", "text": "motion and amended the judgment to reflect the vacated § 924(c)(1) conviction, technically, Woodhouse had a total sentence of 67 months of imprisonment — the amount of imprisonment time allocated to the conspiracy to distribute LSD conviction. After subtracting Woodhouse’s credit for “good time,” he had served more than 67 months in prison at the time of the Court’s order. Thus, technically, he had completed his imprisonment period for the conspiracy to distribute LSD conviction. Because his imprisonment period was now completed, the Bureau of Prisons notified the Government that it had to release Wood-house. The Government immediately filed a motion to stay the sentence until the resentencing issue was resolved. The Court scheduled an emergency telephone conference with the Government and the Federal Public Defender’s Office — Woodhouse’s appointed counsel. At the time of the telephone conference, however, the Court was informed that the Bureau of Prisons had just released Woodhouse. The Government agreed not to seek to arrest Woodhouse pending the resolution of the resentencing issue, thus, the Government’s motion to stay the sentence was moot. Woodhouse has been out of jail since early March 1996. II. Discussion Woodhouse’s resentencing presents at least three significant issues: (1) Does the Court have jurisdiction to resentence Wood-house?; (2) Would Woodhouse’s resentencing violate the Fifth Amendment’s Double Jeopardy Clause?; and (3) Would placing Wood-house back in jail violate the Due Process Clause? As more thoroughly discussed below, the Court concludes that it has jurisdiction to resentence Woodhouse, the resentencing does not violate the Double Jeopardy Clause, and requiring Woodhouse to report back to prison does not violate the Due Process Clause. The Court will address each issue in turn. A. Jurisdiction The argument that the Court lacks jurisdiction to resentence Woodhouse goes something like this: Woodhouse’s § 2255 motion attacked only his § 924(e)(1) conviction, it did not attack the drug trafficking conspiracy conviction; thus, since Woodhouse did not put his drug conviction on the table, the Court has no jurisdiction to increase the part of the sentence associated with that conviction. Or, in other words, the Court has jurisdiction over" }, { "docid": "21015545", "title": "", "text": "1997 Memorandum and Order and this decision exist with regard to additional applications for electronic surveillance relating to this case. As stated at the June 3, 1997 hearing, if the government is uncertain whether a particular matter must be disclosed to the court, it should submit the matter for the court’s in camera consideration. . The May 22, 1997 Memorandum and Order was amended on May 27, 1997. The version served on the parties redacted part of one footnote and all of another because the information involved had been submitted by the government to a magistrate judge for in camera consideration. The information redacted from footnote 3 concerning Bulger’s status as an informant is included in the version of the May 22, 1997 Memorandum and Order, as amended on May 27, 1997, now being made part of the public record. . Ordinarily an order authorizing electronic surveillance may only be issued if there is probable cause to believe that criminal communications will occur at a particular place and the authorization is limited to that place. See 18 U.S.C. §§ 2518(3)(d) and (4)(b). A roving warrant provides a limited exception to these requirements. See 18 U.S.C. § 2518(ll)(a). A roving warrant does not require specification of the place or places where it is to be employed, but may be issued only if the government makes a full and complete statement as to why such specification is impractical and the issuing judge agrees. Id. In Ferrara, this court found that it was practicable to have specified 34 Guild Street as a place there was probable cause to believe the requested warrant would be used and that the government failed to make the required full disclosure to the court. 771 F.Supp. at 1306. The court did not, however, suppress the evidence of the intercepted Mafia induction ceremony in part because it found that the failure to make the required full disclosure was an innocent error rather than part of a deliberate effort to protect the identity of any informant. Id. at 1279, 1306-07. The recently disclosed FBI memorandum is inconsistent with this conclusion" } ]

[ { "docid": "22663560", "title": "", "text": "Ramsameachire ), the only evidence of a future threat to life or freedom was petitioner’s contention, which the IJ found not to be believable, that he had held certain political views and had participated in. political activities in his native country. See Wu Biao Chen, 344 F.3d at 274. Because that same factual assertion was needed for either the asylum or the withholding claim, the credibility ruling necessarily foreclosed relief in both. See also Gomez, 947 F.2d at 663 (insufficient evidence that the applicant’s purported persecutors were inclined to harm her, which formed the sole basis of the alien’s asylum and withholding claims). And, in Zhou Yi Ni (which was decided after Ramsameachire), the only basis for the applicant’s asylum and withholding claims was a sterilization that government officials had allegedly forced the applicant’s wife to undergo. Because the IJ found the applicant’s testimony incredible as to the sterilization, see Zhou Yi Ni, 424 F.3d at 174, both asylum and withholding of removal were necessarily rendered meritless by the credibility determination. See also Majidi, 430 F.3d at 80 (sole basis for asylum and withholding was petitioner’s testimony that he was harassed and persecuted for his political views, which the IJ validly found to be incredible); Zhou Yun Zhang, 386 F.3d at 70 (assertion that wife was forcibly sterilized, which the IJ correctly found incredible, was the only basis for alien’s petition for asylum and withholding of removal); Xusheng Shi, 374 F.3d at 66 (same as Zhou Yun Zhang). Similarly, in the analogous context of CAT claims, we have held that a petition for CAT relief may fail because of an adverse credibility ruling rendered in the asylum context where the factual basis for the alien’s CAT claim was the same as that rejected in his asylum petition. For instance, in Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.2005), an IJ had “validly found, on the basis of inconsistent and implausible statements by Yang and her husband, that Yang had failed to establish a particular fact — Yang’s forced sterilization — and that fact formed the" } ]

[ { "docid": "22663606", "title": "", "text": "if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” IJ Decision at 9. Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ. See 8 U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence,” see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where, as here, the IJ bases his denial of asylum and withholding of removal on a finding that a petitioner’s application is not credible, our review is “highly deferential.” See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005) (“Reviewing a factfinder’s determination of credibility is ill-suited to attempts to fashion rigid rules of law.”); Zhou Yun Zhang, 386 F.3d at 73 (“When a factual challenge pertains to a credibility finding made by an IJ ... we afford ‘particular deference’ in applying the substantial evidence standard.”) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, “[w]here the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to" }, { "docid": "23241556", "title": "", "text": "of alleged persecution in Uzbekistan, including being taunted and beaten at school. Averianova also claimed that her family was continually harassed and threatened for being Jewish. She submitted no evidence to corroborate these claims. On August 25, 1999, an asylum officer interviewed Averianova about her asylum application. The officer found Averianova’s testimony “vague, inconsistent, and unbelievable,” and the INS referred her asylum application to an IJ and initiated removal proceedings. During her removal proceedings, which commenced on February 4, 2000, Averianova renewed her application for asylum and withholding of removal and sought protection under the CAT. Averianova submitted several documents, including an alleged birth certificate, to establish her Jewish ethnicity. The INS investigated the contents of these documents and determined that they were fraudulent. See Averianova, 509 F.3d at 893-94 (describing the fraudulent documents). On November 30, 2004, after holding several evidentiary hearings, the IJ denied Averianova’s application for asylum, withholding of removal, and protection under the CAT, and ordered her removed to Uzbekistan. The IJ found that Averianova failed to corroborate any of her claims of persecution and harassment and concluded that she was not credible because she had submitted fraudulent documents in an attempt to establish that she was Jewish. The BIA adopted and affirmed the IJ’s decision, and we denied Averianova’s petition for review. See id. at 895 (“The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant’s claim fails, ‘regardless of the reason for the alleged persecution.’ ” (quoting Sivakaran v. Ashcroft, 368 F.3d 1028,1029 (8th Cir.2004))). On June 19, 2007, Averianova filed a motion to reopen removal proceedings. She argued that reopening was warranted because her husband had become a U.S. citizen and had applied for a visa that, if approved, would allow her to apply for adjustment of status. Because her motion was untimely, Averianova asked the BIA to exercise its discretion to reopen the case sua sponte. The BIA declined to reopen the case sua sponte and denied Averianova’s motion on March 7, 2008. On April 14, 2008, Averianova filed a" }, { "docid": "22396063", "title": "", "text": "withholding of removal on his wife’s alleged forcible abortion. It is not clear whether petitioner also bases a claim for relief on the alleged sterilization of his cousin. Such a claim would meet with the same problems as one derived from a spouse’s persecution and is, for the same reasons, foreclosed. CONCLUSION For these reasons, the petition for review of the denial of asylum is Dismissed for lack of jurisdiction and the petition for review of the withholding of removal claim is Denied. . The IJ also denied Sun’s application for relief under the Convention Against Torture (“CAT”). Sun’s appeal does not, however, raise any arguments concerning this claim. Accordingly, we consider only his arguments regarding his claims for asylum and withholding of removal. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal). . We also note that our recent decision in Zheng Jian Chen v. BIA, 461 F.3d 153 (2d Cir.2006) has indicated that, under certain circumstances, a discrepancy between the identification numbers shown on different documents may not necessarily indicate fraud. In Zheng Jian Chen, we observed that, although the petitioner had provided a specific explanation for the discrepancy, 461 F.3d at 156, the IJ had failed to investigate petitioner’s explanation. Id. at 156. Accordingly, we remanded for further fact-finding. Here, the IJ did not conclude that the discrepancy was based on fraud but merely noted that \"the numbers differ.” In addition, petitioner did not offer any explanation for the discrepancy. As such, the IJ cannot be said to have erred by failing to investigate. . 8 U.S.C. § 1231(b)(3)(A) provides for withholding of removal: [T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. . Sun arguably may have claimed persecution based on his own alleged resistance to" }, { "docid": "23489910", "title": "", "text": "not credible, the IJ concluded that she had not carried her burden of proving either past persecution or a well-founded fear of future persecution. Similarly, she had not proved that it was more likely than not that she would undergo torture if she were removed to Nigeria. Accordingly, the IJ denied the application for asylum, withholding of removal, and protection under the CAT. The petitioner appealed this decision to the BIA. While her appeal was pending, she moved to remand the case to the IJ based upon new evidence: a psychological evaluation purporting to explain the petitioner’s evasive demeanor and inconsistent testimony during the hearings. On January 29, 2004, the BIA summarily affirmed the IJ’s decision and denied the motion to remand. As to the latter, the BIA found that the report was not “new evidence” inasmuch as the underlying information on which it rested was available at the time of the hearings and could have been proffered to the IJ. As an alternate ground, the BIA found the report immaterial, as the IJ’s adverse credibility finding was not based upon demeanor alone. This timely petition for review followed. II. DISCUSSION We treat sequentially the petitioner’s claims that the BIA erred (i) in summarily affirming the denial of her asylum, withholding of removal, and CAT claims, and (ii) in refusing to reopen the proceedings below. A. The Asylum Claim. We turn first to the asylum claim. In order to establish an entitlement to asylum, an alien bears the burden of showing that she is a refugee within the meaning of the immigration laws. See Rodriguez-Ramirez v. Ashcroft, 398 F.Sd 120, 124 (1st Cir.2005); see also 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A refugee is a person who cannot or will not return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Rodriguez-Ramirez, 398 F.3d at 124. We review findings of fact in immigration cases, including credibility determinations, under the substantial evidence standard. Da" }, { "docid": "22663644", "title": "", "text": "v. Gonzales, 463 F.3d 135, 138, 140 (2d Cir.2006) (reviewing whether the BIA may permissibly consider, as a matter of law, a petitioner's New York State Youthful Offender Adjudication when evaluating an adjustment of status application, but dismissing petitioner's challenge to the BIA's conclusion that his criminal history rendered him unworthy of discretionary relief, concluding that petitioner’s challenge was \"an 'abuse of discretion' claim disguised as a question of law”); Bugayong, 442 F.3d at 72 (dismissing petitioner's \"argument that the IJ erred in evaluating his hearing testimony” because it was \"at bottom, a challenge to the IJ's exercise of his discretion”). . The IJ conducted his adverse credibility analysis as part of his denial of petitioner’s asylum application on the merits, which in turn was premised on the IJ's assumption, made in the alternative, that petitioner's asylum claim was not in fact barred by the one-year rule of 8 U.S.C. § 1158(a)(2)(B). See IJ Decision at 4 (\"However[J if the Court did make an[] error in finding [petitioner] statutorily ineligible for asylum[,] the Court will proceed with the decision on the basis that [petitioner] is eligible and would find that because she has not been credible today, the Court would deny her application.”). Because \"an applicant who fails to establish [her] eligibility for asylum necessarily fails to establish eligibility for withholding” of removal, Zhou Yun Zhang v. INS, 386 F.3d 66, 71 (2d Cir.2004), the IJ's adverse credibility findings rejecting petitioner's asylum claim apply equally to the IJ's denial of petitioner’s application for withholding of removal. . The \"substantial evidence” standard has its origins in the Administrative Procedure Act, which provides that \"[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... unsupported by substantial evidence in a case ... reviewed on the record of an agency hearing provided by statute.... ” 5 U.S.C. § 706(2)(E). That principle of \"substantial evidence” was reflected in the former 8 U.S.C. § 1105a(a)(4), which the Supreme Court interpreted in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), to provide" }, { "docid": "22245028", "title": "", "text": "DENNIS JACOBS, Chief Judge: Petitioner Ying Li, a native and citizen of the People’s Republic of China, seeks review of a summary affirmance by the Board of Immigration Appeals (“BIA”) of the oral decision of an immigration judge (“IJ”), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Li, Ying, No. [ A XX XXX XXX ] (B.I.A. Feb. 20, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. New York City, Aug. 9, 2005). Li’s asylum application is premised on her claim that the Chinese government persecuted her for supporting Falun Gong. The IJ determined that Li was not credible, chiefly on the ground that her account is implausible, and denied her applications on that basis. We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The IJ relied on several “valid” and “cogent” reasons for rejecting Li’s testimony as implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). While explanations are available for features of petitioner’s account that were found implausible, we review the entire record, not whether each unusual feature of the account can be explained or rationalized. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 161 (2d Cir.2006). The IJ could conclude that Li’s account, taken all in all, is implausible; and so we cannot say that any reasonable adjudicator would be compelled to conclude that she testified credibly. Accordingly, the petition is denied. I. Ying Li was placed in removal proceedings in January 2005 when she attempted to enter the United States without valid travel documents. Li applied for asylum, withholding of removal, and relief under the CAT, claiming that the Chinese government persecuted her for her involvement with Falun Gong. Li’s account — as set forth in her asylum application and at her merits hearing — is as follows: Her uncle’s friend, a practitioner, introduced her to Falun Gong. Although Li had only a “basic understanding” of Falun Gong, she was “very interested” in it because “it [is] a good practice” and is" }, { "docid": "22671192", "title": "", "text": "vacated and remanded to the BIA so that the merits of the petitioner’s CAT claim could be addressed. In Zubeda, the petitioner claimed in her asylum application that she had been taken captive and raped by soldiers fighting in the Democratic Republic of Congo’s civil war, and she requested withholding under the CAT on the basis that she would face detention and rape if returned to the Democratic Republic of Congo. The BIA held that the IJ’s adverse credibility finding with respect to her past persecution was conclusive with respect to her CAT claim. The Third Circuit vacated, noting that “claims for relief under the Convention are analytically separate from claims for asylum.” 333 F.3d at 476 (quoting Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001)). Because they did not depend exclusively on a factual predicate that the petitioners had failed to establish, the CAT claims in Ramsameachire and Zubeda were indeed analytically separate from the asylum claims. In such cases, the “bleeding over” of adverse credibility findings into independent claims has been deemed to be an error sufficient to justify vacatur. In Yang’s case, by contrast, there is no impermissible “bleeding over.” Rather, the IJ’s adverse credibility finding goes precisely to the point that Yang had to prove in order to make out her forced-sterilization-as-torture argument, and, hence, to qualify for withholding under the CAT. There may be cases where the relationship between credibility determinations and CAT claims is unclear, and where, therefore, more specific discussions on the part of the IJ and BIA are appropriate. In the case before us, however, both the scope of the IJ’s credibility finding and its fatal effect on the factual basis of Yang’s CAT claim are readily apparent. Accordingly, her CAT claim must fail. For the foregoing reasons, the petition for review is DENIED, and the outstanding motion for a stay of deportation is DENIED." }, { "docid": "22881320", "title": "", "text": "an applicant’s claim can form the basis for an adverse credibility determination.” Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir.2006). Petitioner’s asylum application emphasized that she had undergone two forced abortions and had been driven to attempt suicide. J.A. 396, 398. Petitioner did not, however, discuss any of these events at her airport interview, J.A. 565-69, or at her later credible fear interview, J.A. 559-63. Such inconsistencies go well beyond the “insignificant and trivial” variations that might ordinarily be expected in light of the limited purpose of both airport and credible fear interviews. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005) (rejecting an adverse credibility determination based on “insignificant and trivial” inconsistencies). Because these omissions undeniably go to the heart of petitioner’s claims for asylum and withholding of removal, it was not unreasonable for the agency to draw an adverse inference about petitioner’s credibility based, inter alia, on her failure to mention the forced abortions and suicide attempt at her airport interview or her credible fear interview. It was also not unreasonable for the IJ and the BIA to conclude that petitioner — having failed to establish the veracity of the claims on which she based her application for relief — had not demonstrated her eligibility for asylum, withholding of removal, or relief under the Convention Against Torture. III. Conclusion In sum, we hold that credible fear interviews, like airport interviews, merit careful examination to ensure their reliability. Where, as here, however, the record of a credible fear interview bears sufficient indicia of reliability, it may be relied on as a source of an alien’s statements. Moreover, where examination of the credible fear interview reveals inconsistencies that go to the heart of an alien’s claims, as it does in this case, an adverse credibility determination based on those inconsistencies can withstand substantial evidence review. For the reasons set forth above, the petition for review is DENIED. . Ming Zhang’s claims are based on her alleged resistance to family planning policies in China. Ja Yun Zhang’s application is based on the application filed by his mother." }, { "docid": "22643746", "title": "", "text": "v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (internal quotation marks omitted). We do not fashion legally binding sub-rules that purport to govern determination of when that generalized standard is met. In the pending case, the IJ supported his finding that Chen’s testimony lacked credibility in part by pointing to two claims that he considered implausible. First, he had difficulty believing that the authorities, lacking Chen’s address, could quickly locate her in a city of one million people just by looking in a neighborhood where young people live. Second, he had difficulty believing that she could escape from detention just because her jailors were not paying attention. We think it entirely reasonable for the IJ to have considered these claims implausible without further explanation and to have relied on them, along with her demeanor and inconsistencies in her testimony, in making the ultimate finding that she was not a credible witness. We need not consider the IJ’s alternative ground that, even if Chen was credible, she had not established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the" }, { "docid": "23025365", "title": "", "text": "LEAVY, Circuit Judge. Ferida Kasnecovic, a nátive and citizen of Yugoslavia, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). An Immigration Judge (IJ) found that Kasneeovic’s asylum application was untimely and that Kasne-covic did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Kasnecovie’s asylum claim on the merits, based on an adverse credibility determination. Finally, the IJ denied Kasnecovic’s petitions for withholding of removal and CAT relief. We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(1). Because substantial evidence supports the IJ’s adverse credibility determination, we deny the petition as to the withholding of removal and CAT claims and dismiss the petition as to the asylum claim. STANDARD OF REVIEW We review the BIA’s decision to determine whether it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). FACTS AND PRIOR PROCEEDINGS Kasnecovic entered the United States on December 22, 1998. At the time of entry she told the Immigration and Naturalization Service (INS) interviewer that she was born in Montenegro, Yugoslavia, and gave a specific location, including a zip code equivalent, as her permanent residence in Montenegro. She also told the interviewer that she had two relatives in the United States, an aunt, Osman Kalivo-ri, who lived in Staten Island, New York, and a sister, Dija Kasnecovic, living in Queens, New York. In December 1999, Kasnecovic applied for Temporary Protected Status (TPS), stating that she was born in Kosovo, Yugoslavia, and was a national of Kosovo Province. The INS" }, { "docid": "22735605", "title": "", "text": "to ask questions”; and [iii] the discrepancy between Ni’s claim that she received an abortion certificate following her forced abortion and the 1998 State Department Country Report which states that United States authorities “are unaware of any so-called ‘abortion certificates’ ” and that “the only document that might resemble such a certificate ... is a document issued by hospitals upon a patient’s request after a voluntary abortion.” Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions 24 (Apr. 14, 1998); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006). The adverse credibility finding undermines the only record evidence of Ni’s alleged past persecution or risk of future persecution. Accordingly, the BIA’s denial of Ni’s application for asylum and withholding of removal is supported by substantial evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005). III In virtually all cases, the conclusion that substantial evidence supports the IJ’s decision would end our inquiry; our review of an IJ’s findings is limited to determining whether “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 1252(b)(4). Absent a determination that a reasonable adjudicator would be so compelled, or that the IJ committed an error of law, the petition must be denied. See id. However, in Tian Ming Lin v. U.S. Department of Justice, 473 F.3d 48 (2d Cir.2007) (per curiam), a panel of this Court raised in dicta the prospect that we may be able nevertheless to remand for further fact-finding. The Tian Ming Lin panel: [i] took judicial notice of certain documents that were in the record of another case, Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006); [ii] relied on Guo for the proposition that the documents, “if authentic,” “ ‘apparently reflect! ] governmental policy in the province in China where [the petitioner] lived,’ ” Tian Ming Lin, 473" }, { "docid": "22154052", "title": "", "text": "INS, 185 F.3d 18, 22 (2d Cir.1999). Accordingly, petitioner’s request for withholding of removal must be dismissed. Finally, petitioner argues that although she did not seek relief under the CAT in her proceeding before the IJ, the IJ or BIA should have considered her eligibility for such relief sua sponte pursuant to 8 C.F.R. § 1208.13(c)(1). Because petitioner filed her asylum application on December 14, 1996, which is prior to the effective date of that regulatory provision, such sua sponte review was not required. See id. (describing procedures applicable to applications “filed on or after April 1, 1997”). Accordingly, the petition for review is denied insofar as it relates to petitioner’s CAT claims. CONCLUSION Upon our review of the record, we decline to set aside the IJ’s adverse credibility finding and we find no fault with her application of the law. The IJ had the opportunity to question petitioner in person, to evaluate her demeanor, and to review all the documents in the record. Her findings can be overruled “only if no reasonable fact-finder could have failed to find” the contrary result. Jian Xing Huang, 421 F.3d 125, 128 (2d Cir.2005) (internal quotation marks omitted). Because we conclude that that high standard has not been met, we cannot disturb the IJ’s decision denying petitioner asylum and withholding of removal. * * * * * * We have considered all of petitioner’s arguments and found each of them to be without merit. Accordingly, we Deny the petition for review, as well as petitioner’s pending motion for stay of removal. OAKES, Senior Circuit Judge, concurring in part and dissenting in part. As to the majority’s dismissal of Borovi-kova’s CAT claims, I concur. However, as to the majority’s holding regarding Borovi-kova’s eligibility for asylum (and, in turn, its holding as to her eligibility for withholding of removal), I respectfully dissent. I believe the IJ’s adverse credibility finding in this case is unsubstantiated. First, the IJ’s finding that Borovikova’s birth certificate was inauthentic goes against the weight of substantial evidence to the contrary, and it constitutes error. Borovikova introduced rebuttal evidence, uncontro-verted by the" }, { "docid": "22818350", "title": "", "text": "referred to “arrests with” Marynenka or “being called to the dean’s office” with her. Id. The IJ found it “implausible ... that after th[e] alleged brutal assault [the rape], that [Marynenka] would not go immediately to an emergency room,” but rather waited “until 10:00 the next morning” to “seek medical assistance.” J.A. 169. The IJ also discounted Marynenka’s medical record of the rape because the document was not on clinic letterhead and because she had not established its chain of custody. The IJ noted the lack of documentation to support Marynenka’s claim that she was hospitalized in July 2002 after being interrogated and beaten. The IJ also noted that Shuppo’s statement did not provide any foundation for her knowledge of Marynenka’s membership in Zubr or her participation at two demonstrations. Nor did Shuppo mention that Marynenka had been harmed or arrested. Although Zhurau’s statement confirmed Marynenka’s participation in Zubr and her arrest at the July 27, 2002, demonstration, the IJ did not credit Zhurau because “there is absolutely no way for this Court [the IJ] to corroborate the information in [Zhurau’s] affidavit.” J.A. 170. Finally, the IJ explained that Marynenka’s mother’s statement did not overcome the “aforementioned concerns and indeed this letter does not constitute independent evidence of [Marynenka’s] alleged persecution.” J.A. 170 (citing Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 359 (4th Cir.2006)). Based on the foregoing reasoning, the IJ found that Marynenka failed to meet her burden of proof and denied her application for asylum. Similarly, the IJ found that Marynenka did not satisfy her burden of proving eligibility for withholding of removal. Finally, the IJ denied Marynenka’s request for protection under CAT because she failed to prove that it is more likely than not that she would be tortured if removed to Belarus. Marynenka appealed the IJ’s decision to the BIA, which adopted and affirmed the IPs decision and dismissed Marynenka’s appeal. Like the IJ, the BIA did not make an express adverse credibility finding. Instead, the BIA found that Marynenka “ha[d] not met her burden of proof to establish eligibility for relief.” J.A. 293. Marynenka petitioned this" }, { "docid": "22246166", "title": "", "text": "a preponderance of the evidence that Diallo had been persecuted, had a well-founded fear of future persecution, was likely to be persecuted in the future, or was likely to be tortured. Id. at 10. In context, it is clear that the IJ did not deny Diallo’s claim “for want of sufficient corroboration,” Jin Shui Qiu, 329 F.3d at 153, but concluded instead that because Diallo’s testimony was incredible she had failed to prove her eligibility for relief. Diallo does not, nor could she seriously, contest that if her testimony was properly discredited, she is ineligible for relief. In light of our conclusion that the IJ’s adverse credibility determination was supported by substantial evidence, we conclude that Diallo was appropriately denied asylum, withholding of removal, and CAT relief. CONCLUSION For the foregoing reasons, the petition for review is denied. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See also 8 C.F.R. § 208.16(c) (implementing regulations). . It seems that by \"removal hearings” the BIA intended to refer to Diallo’s asylum hearing before the IJ, at which Diallo actually offered explanations for the discrepancies, rather than to her removal hearing, at which she conceded removability. Diallo's removal hearing contained no substantive discussion of her asylum claim and predated the IJ's finding of inconsistencies in the record. . This conclusion is supported by Ramsameachire. There, addressing the more difficult question of the reliability of airport interviews, we did not suggest that a paraphrased record of an asylum applicant’s statements will always be unreliable. Rather, we identified three other factors that should also be considered in determining an interview’s reliability: whether the questions were \"designed to elicit the details of an asylum claim,” whether the applicant seemed \"reluctant to reveal information” to her interviewer, and whether \"the alien’s answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter.” Ramsameachire, 357 F.3d at 180 (internal quotation marks omitted); but see Yun-Zui Guan, 432 F.3d at 396" }, { "docid": "13631837", "title": "", "text": "of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions of law. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir.2005). The IJ’s factual findings, however, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will affirm the IJ’s factual determinations provided they are “supported by ‘reasonable, substantial, and probative’ evidence in the record,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)), and were “not reached arbitrarily or capriciously,” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 74 (2d Cir.2004). B. Asylum and Withholding of Removal To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 70 (quoting 8 U.S.C. § 1101(a)(42)). The standard for withholding of removal is higher, see id. at 71, requiring a showing that “it is more likely than not” that the applicant’s “ ‘life or" }, { "docid": "22735604", "title": "", "text": "evidence standard, mindful that the law must entrust some official with responsibility to hear an applicant’s ... claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir.2004) (internal citations and quotation marks omitted). Our review of an adverse credibility determination is “exceedingly narrow,” Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999), and ensures only that it is “based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Zhang, 386 F.3d at 74. The adverse credibility finding here was supported by substantial evidence. The IJ found that Ni’s credibility was undermined by [i] the implausibility and inconsistency of Ni’s testimony about her deference to the neighbors’ views regarding her boyfriend and her pregnancy; [ii] Ni’s failure to mention her claimed fear of sterilization on direct examination or in her asylum application, or until “the very last part of the hearing when the Court started to ask questions”; and [iii] the discrepancy between Ni’s claim that she received an abortion certificate following her forced abortion and the 1998 State Department Country Report which states that United States authorities “are unaware of any so-called ‘abortion certificates’ ” and that “the only document that might resemble such a certificate ... is a document issued by hospitals upon a patient’s request after a voluntary abortion.” Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions 24 (Apr. 14, 1998); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006). The adverse credibility finding undermines the only record evidence of Ni’s alleged past persecution or risk of future persecution. Accordingly, the BIA’s denial of Ni’s application for asylum and withholding of removal is supported by substantial evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540," }, { "docid": "22154051", "title": "", "text": "single ground had been persuasive enough on its own, the combination of them all surely was. When an IJ bases an adverse credibility finding on multiple grounds, we review the totality of the IJ’s decision, instead of dissecting the IJ’s opinion and reviewing each portion in isolation. Here, the IJ found that petitioner presented a false birth certifícate, offered inconsistent written statements, and contradicted herself when testifying. These factors, in combination, convinced the IJ that petitioner was not “a credible witness.” While we can never be certain that the IJ correctly evaluated a petitioner’s truthfulness, the statute that governs our review rests on the presumption that the IJ is in a better position than a reviewing tribunal to decide such questions. Because the IJ properly relied on “substantial evidence” in finding that petitioner lacked credibility, we accept her findings of fact. III. Petitioner’s Withholding of Removal and CAT Claims An applicant who, like petitioner, fails to establish her eligibility for asylum is necessarily unable to establish her eligibility for withholding of removal. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). Accordingly, petitioner’s request for withholding of removal must be dismissed. Finally, petitioner argues that although she did not seek relief under the CAT in her proceeding before the IJ, the IJ or BIA should have considered her eligibility for such relief sua sponte pursuant to 8 C.F.R. § 1208.13(c)(1). Because petitioner filed her asylum application on December 14, 1996, which is prior to the effective date of that regulatory provision, such sua sponte review was not required. See id. (describing procedures applicable to applications “filed on or after April 1, 1997”). Accordingly, the petition for review is denied insofar as it relates to petitioner’s CAT claims. CONCLUSION Upon our review of the record, we decline to set aside the IJ’s adverse credibility finding and we find no fault with her application of the law. The IJ had the opportunity to question petitioner in person, to evaluate her demeanor, and to review all the documents in the record. Her findings can be overruled “only if no reasonable fact-finder could" }, { "docid": "20304896", "title": "", "text": "its entirety, citing to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Thus, we review the BIA’s decision regarding asylum and ble IJ’s decision regarding withholding of removal and CAT relief. See Ahir v. Mukasey, 527 F.3d 912, 916 (9th Cir.2008); Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). II. Asylum The BIA correctly found that Mutuku’s application for asylum was barred by the one-year statute of limitations. 8 U.S.C. § 1158(a)(2)(B). Mutuku’s hope that conditions in Kenya would improve does not constitute an extraordinary circumstance excusing her delay in applying for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). We dismiss Mutuku’s petition insofar as it relates to her asylum claim. Mutuku’s application for withholding of removal and relief under CAT, however, is not time barred. See Saleh Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004). III. Withholding of Removal a. Adverse Credibility Determination The IJ denied Mutuku’s application for asylum and withholding of removal because he found that her testimony was not credible. With respect to asylum, the BIA disclaimed reliance on the IJ’s adverse credibility finding, and chose to affirm solely on the basis that Mutuku’s application was not timely. See Ahir, 527 F.3d at 916(citing Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 (9th Cir.2008) overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009)); Abebe, 432 F.3d at 1040 (citing Tchoukhro va v. Gonzales, 404 F.3d 1181 (9th Cir.2005), vacated on other grounds, 549 U.S. 801, 127 S.Ct. 57, 166 L.Ed.2d 7 (2006)). However, the BIA did adopt and affirm the IJ’s adverse credibility determination insofar as it provided a basis for denying Mutuku’s application for withholding of removal. The IJ found that Mutuku was not credible because, though Mutuku had testified that she had almost been run over by a truck driven by a KANUP supporter in 1992, she did not mention this significant event in her asylum application. Credibility determinations are reviewed under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009); Don v. Gonzales, 476 F.3d" }, { "docid": "22246148", "title": "", "text": "decision are actually present in the record; the inconsistencies pertain to the salient points of the respondent’s claims; and the inconsistencies provide a cogent basis for the adverse credibility determination.” In re Diallo, [ AXX XXX XXX ], slip op. at 1 (BIA June 29, 2004). The BIA further stated that “the respondent failed to provide convincing explanations for the discrepant record either during the removal hearings or on appeal.” Id. The BIA therefore adopted and affirmed the decision of the IJ. Diallo then brought this petition for review. She argues that the IJ erred in: (1) ignoring her explanations for the apparent inconsistencies in her story, (2) relying on the written summary of the asylum interview, and (3) requiring corroborative evidence without identifying specific pieces of evidence or showing that they were reasonably available to Diallo. DISCUSSION I. Standard of Review When the BIA issues a brief opinion adopting an IJ’s decision, we review the two decisions together — including “the portions [of the IJ’s decision] not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that" }, { "docid": "22918323", "title": "", "text": "large part because of “major inconsistencies and problems” related to “where they are from,” which she concluded went “to the heart of their claim.” The IJ’s oral decision extensively discussed Aghavni’s responses to questions about the documents’ origins and Aghavni’s inability to present additional evidence to corroborate that she and her family had lived in Iran. Based on her adverse credibility finding, the IJ held that Aghavni failed to establish the date of her arrival in the United States, and thus that she had not shown that she submitted her asylum application within one year of her arrival as required by 8 U.S.C. § 1158(a)(2)(B). The IJ therefore pretermitted Petitioners’ asylum claim as untimely. The IJ then went on to hold that Petitioners also failed to establish their eligibility for withholding of removal and protection under the CAT because they had not credibly “show[n] where they are from.” The IJ denied all relief and ordered Petitioners removed “to either Iran or Armenia.” The BIA “adopt[ed] and affirm[ed]” the IJ’s denial of asylum, citing Matter of Burbano, 20 I & N Dec. 872, 874 (B.I.A.1994), “on the basis of [Petitioners’] failure to provide clear and convincing evidence that their applications for asylum were timely filed.” The BIA also “adopt[ed] and affirm[ed]” the IJ’s denial of withholding of removal and CAT protection, specifying that it agreed with the IJ’s finding that Petitioners failed to “provide credible testimony and evidence to establish their alienage and thus carry their burden of proof’ for either withholding or CAT protection. Petitioners timely appealed. Scope and Standard of Review Constitutional due process challenges to immigration decisions are reviewed de novo. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003). Where the BIA cites Matter of Burbano and does not express any disagreement with the IJ’s decision, we review the IJ’s decision as if it were the BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). Before reaching the merits, we first decide a question of the scope of our jurisdiction. In its Notice To Appear, the government alleged that Aghavni last arrived in" } ]

[ { "docid": "4147099", "title": "", "text": "return for consideration.” O.C.G.A. § 11-2A-103(j). Mitsubishi contends that because repossession terminates the right to possession and use, it simultaneously terminates a lease. Thompson v. Doctor’s Associates, Inc. (In re Thompson), 186 B.R. 301, 307 (Bankr.N.D.Ga.1995) (termination of real estate lease and dispossession of tenant resulted in transfer of right to possess and use back to landlord). The act of repossession alone «does not establish lease termination. However, repossession coupled with notice to the lessee of the lessor’s unequivocal intent to sell the leased property establishes lease termination as of the date of the notice of intent to sell. Mitsubishi was entitled by the terms of the Lease and by Article 2A to terminate the Lease. O.C.G.A. § 11-2A-523(1); Lease, Item 34. Pre-petition, Mitsubishi mailed the Notice stating that the Vehicle had been repossessed and would be sold, leaving Debtors no option to resume or reinstate the Lease. Mitsubishi could terminate the Lease, and must terminate the Lease prior to selling the Vehicle. Mitsubishi’s notice of sale establishes termination of the Lease effective August 23, pre-petition. As of fifing of bankruptcy relief Debtors retained no interest in the Vehicle or the Lease. It is, therefore, ORDERED that judgment on the complaint for turnover and for damages from violation of the automatic stay filed by Michael and Felicia Lamar against Mitsubishi Motors Credit of America, Inc. be entered for Defendant. This judgment moots Mitsubishi’s motion for relief from stay. No monetary award is made. . It is unsettled whether the standard of proof required for either turnover or violation of stay is a clear and convincing standard or the less stringent preponderance of the evidence standard. Turnover: Paletti, 242 B.R. at 66; Alofs Mfg. Co., 209 B.R. at 89-91 (Bankr.W.D.Mich.1997). Violation of stay: compare Boone, 235 B.R. at 833; In re Clarkson, 168 B.R. 93, 95 (Bankr.D.S.C.1994) (standard is clear and convincing); with In re Sharon, 200 B.R. 181, 199 (Bankr.S.D.Ohio 1996); Clayton v. King (In re Clayton), 235 B.R. 801, 806 n. 2 (Bankr.M.D.N.C.1998) (preponderance). Since Debtors fail to meet their burden of proof under either standard of evidence, the" } ]

[ { "docid": "8719197", "title": "", "text": "of the evidence, that: (a) A bankruptcy petition was filed; (b) The aggrieved debtor is an ‘individual’; (c) The creditor had notice of the petition; (d) The creditor’s actions were willful and violated the stay; and (e) The debtor is entitled to a form of relief provided by Section 362(k). Kondritz v. Univ. of Phoenix (In re Kondritz), 2011 WL 2292292 at *4 (Bankr. S.D.Ind. June 8, 2011). “A willful violation does not require specific intent to violate the stay; it is sufficient that the creditor takes questionable action despite the awareness of a pending bankruptcy proceeding.” In re Radcliffe, 563 F.3d 627, 631 (7th Cir.2009). A. Certain Forms of Inaction May Constitute A Violation of the Stay Here, the Debtor does not allege that either Ms. Lang or North Shore took action in violation of the stay. The Debtor instead contends that the respondents had an affirmative duty to take action, and therefore their inaction was a violation of the stay. While there are several situations in which a failure to take affirmative action may itself be a violation of the automatic stay, none apply to the facts in this case. 1. Exercising Control Over An Asset of the Estate In Thompson v. General Motors Acceptance Corp., the Seventh Circuit held that a creditor who repossessed a vehicle pre-petition and refuses to return it to the debtor after a Chapter 13 case is filed violates the automatic stay. 566 F.3d 699 (7th Cir.2009). The court held that “the act of passively holding onto an asset constitutes ‘exercising control’ over it, and such action violates section 362(a)(3) of the Bankruptcy Code.” Thompson, 566 F.3d at 703. While Section 362(e) gives a secured creditor the right to request adequate protection of its interest in such property, that right is not a defense or an excuse not to return the vehicle. Instead, “a creditor must first return an asset in which the debtor has an interest to his bankruptcy estate and then, if necessary, seek adequate protection of its interests in the bankruptcy court.” 566 F.3d at 708. Thompson is informative, but" }, { "docid": "18141777", "title": "", "text": "debtor’s bankruptcy estate under section 541(a)(1) of the Bankruptcy Code .... ”); see also Bell-Tel Credit Union v. Kalter, 292 F.3d 1350 (11th Cir.2002); Charles R. Hall Motors, Inc. v. Lewis, 137 F.3d 1280, 1285 (11th Cir.1998). Under the Georgia law applicable to this case, “ ‘ownership of collateral does not pass to a creditor upon repossession, but remains with the debtor until the creditor complies with the disposition or retention procedures of the Georgia UCC.’ ” Motors Acceptance Corp. v. Rozier (In re Rozier), 376 F.3d 1323 (11th Cir.2004) (citing Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367 (2004)). Here, the Defendant repossessed the Vehicle prior to the filing of the Debtor’s petition, but apparently did not comply with the disposition or retention procedures of the Georgia Uniform Commercial Code. Accordingly, the Vehicle became property of the Debtor’s bankruptcy estate upon the filing of the Debtor’s petition on December 23, 2004. The commencement of a bankruptcy ease also triggers an automatic stay that prevents creditors from taking “any action to obtain possession of property of the estate ... or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). The Debtor contends that the Defendant’s failure to return the vehicle upon her request was a willful violation of the automatic stay. She seeks an award of compensatory damages, attorney’s fees, and punitive damages. No evidence was presented as to the amount of any damages suffered by the Debtor due to the Defendant’s conduct. However, before reaching that issue, the Court must first determine whether the Defendant’s failure to turn over the Vehicle upon the request of the Debtor constitutes a willful violation of the automatic stay. The case law is split on the issue of whether a creditor violates the automatic stay by failing, upon the request of the debtor, to turn over a vehicle that was repossessed lawfully" }, { "docid": "13553537", "title": "", "text": "Thus, Lewis is inapplicable when applying rights under Illinois law. “This court believes that the situation presented in this case falls squarely within Whiting Pools ’ conclusion that until a sale has taken place, property seized pre-petition pursuant to a creditor’s provisional remedy remains property of the estate, and as such, is subject to the turnover requirements of § 524(a).” Spears, 223 B.R. at 165. Therefore, Debtor can certainly attempt to vindicate her rights under § 524(a) in this proceeding if she can offer adequate protection to the Defendant. Sanctions Requested Under § 362(h) Plaintiffs one-count complaint also includes a request for sanctions for alleged intentional violation of the automatic stay. Debtor argues that once she filed her bankruptcy petition, Grand National was obligated to return her vehicle and its failure to so was a willful violation of the automatic stay. Under § 362, the filing of a bankruptcy petition operates as a stay against any act to collect a pre-petition debt as well as any act to obtain possession of property of the estate. 11 U.S.C. § 362(a). Under § 362(h), a willful violation of the stay gives the debtor the right to recover actual as well as punitive damages from the creditor. However, there is no express language in § 362 requiring a creditor to return property repossessed prepetition solely because a bankruptcy petition was filed. Several opinions have determined that once a debtor in bankruptcy requests the return of property, the secured creditor must ordinarily turn the property back to the debtor. See Spears, 223 B.R. at 165-66 (collecting cases). These courts find that a creditor has a duty upon learning of the bankruptcy to return a repossessed vehicle. “Further, the creditor’s duty to return the vehicle is not dependant on receipt of adequate protection or proof of insurance. Section 542(a) contains no provision expressly requiring adequate protection as a prerequisite to turnover and it requires no preliminary action on the part of the debtor.” In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (citing In re Sharon, 200 B.R. 181, 189 (Bankr.S.D.Ohio 1996)). However, other opinions have" }, { "docid": "9760232", "title": "", "text": "perfect, or enforce any lien against property of the estate.” Id. § 362(a)(3), (4). Repossession of property of the estate in enforcement of a security interest is an act to obtain possession of, and enforce a lien against, property of the estate, constituting a violation of the stay. See, e.g., Burnett v. Danz Care, Inc. (In re Burnett), No. 91-1096, 1992 WL 12004367, at *6 (Bankr.S.D.Ga. Feb. 3, 1992). Moreover, because under Georgia law a debtor retains legal title to a repossessed vehicle until it is sold, failure to return a repossessed vehicle is an exercise of control over property of the estate, constituting an ongoing violation of the stay. See Motors Acceptance Corp. v. Rozier (In re Rozier), 376 F.3d 1323, 1324 (11th Cir.2004). The automatic stay serves two chief purposes in an individual debtor case: (1) to protect the debtor, allowing her successful rehabilitation, reorganization, or fresh start; and (2) to protect creditors (especially unsecured creditors) from being prejudiced in the creditors’ collective chaotic rush to obtain the debtor’s assets. To effectuate these purposes, Congress has provided that “an individual injured by any willful violation of [the automatic stay] shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(k)(l). The principal questions before the Court in this matter are: (1) whether the vehicle was property of the estate, rendering Kam’s repossession and continued control of the vehicle a stay violation; and (2) if a stay violation occurred, whether it was willful. If the Court determines that a willful stay violation has occurred, then it must decide the extent to which to award either damages or attorneys’ fees, or both. L Vehicle as Property of the Estate The Debtor argues that a stay violation occurred because the vehicle was property of the estate pursuant to the Debtor’s Plan, which provides that property of the estate does not vest in the Debt- or. Kam’s, on the other hand, argues that the vehicle — purchased after the confirmation of the Debtor’s Plan — was not property of the estate and," }, { "docid": "22303375", "title": "", "text": "act ... to exercise control over property of the estate.” In the present case, the trial court found that appellees had “exercised exclusive control” over the Abrams’ vehicle, and neither Southwest nor Desert took any “reasonable measures within a reasonable time” to return the vehicle after receiving notice of the bankruptcy. There is nothing to indicate that these findings are clearly erroneous, and they have not been challenged on appeal. Based on the record and the clear statutory language,- we conclude that appellees’ actions constituted a violation of § 362(a)(3). 2. “Willfull” Violation. Section 362(h) provides a remedy for willful violations of the automatic stay as follows: (h) An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. The trial court determined that appellees’ actions did not constitute willful violations of the automatic stay, which determination is reviewed for clear error. See In re Bloom, 875 F.2d 224 (9th Cir.1989). The term “willful” for purposes of § 362(h) is defined in this circuit as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. Bloom, 875 F.2d at 227 (citation omitted). A violation of the stay is thus willful when a creditor acts intentionally with knowledge of the bankruptcy. Accord Knaus, 889 F.2d at 775. In this case, the court found that Southwest knew of the Abrams’ bankruptcy the day Desert repossessed the vehicle, and that appellees had “willfully and intentionally” failed to return the vehicle after learning of the bankruptcy. Appellees again do not challenge the validity of these findings, which are supported by the record. Where two permissible views of the evidence exist, the" }, { "docid": "6316663", "title": "", "text": "vehicle is property of the estate is a legal question subject to de novo review, as is whether there was a willful violation of the automatic stay. Any finding of damages suffered as a result of such violation is a finding of fact to be reversed only if clearly erroneous. It is beyond doubt that Alberto was in default on his obligation and the repossession of the vehicle on June 8, 1998, by M & T Trust was lawful and proper. At the time of the lawful repossession, M & T Trust had the right to possession of the vehicle. See N.Y.U.C.C. § 9-503. M & T Trust notified Alberto in writing of its intention to retain, and sell, the vehicle in satisfaction of the outstanding debt. See § 9-504. Once the lawful repossession occurred, Alberto no longer had the right to possess the vehicle; he merely retained the right pursuant to § 9-506 to redeem it before the secured creditor disposed of it. Alberto filed the Chapter 13 petition after the lawful repossession. Accordingly, what became property of the bankruptcy estate was the interest the debtor, Alberto, had in the property: the right to redeem but not the right to possess. See 11 U.S.C. § 541. The question remains whether M & T Trust violated the automatic stay by retaining and in fact disposing of the collateral. The stay prohibits “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” § 362(a)(3). M & T Trust did not “act to obtain possession ... or to exercise control” of the vehicle in violation of the stay, since it already lawfully possessed and controlled the vehicle when the stay went into effect. See In re Fitch, 217 B.R. 286, 290 (Bankr.S.D.Cal.1998) (no violation of automatic stay where secured creditor repossessed vehicle before stay became effective and retained vehicle after stay became effective). The bankruptcy court, and Alberto on this appeal, rely upon United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d" }, { "docid": "8390317", "title": "", "text": "that the situation presented in this case falls squarely within Whiting Pools ’ conclusion that until a sale has taken place, property seized pre-petition pursuant to a creditor’s provisional remedy remains property of the estate, and as such, is subject to the turnover requirements of § 624(a).” Spears, 223 B.R. at 165. Therefore, Debtor can certainly attempt to vindicate her rights under § 524(a) in this proceeding if she can offer adequate protection to the Defendant. Sanctions Requested Under § 362(h) Plaintiffs one-count complaint also includes a request for sanctions for alleged intentional violation of the automatic stay. Debtor argues that once she filed her bankruptcy petition, FMC was obligated to return her vehicle and its failure to so was a willful violation of the automatic stay. Under § 362, the filing of a bankruptcy petition operates as a stay against any act to collect a pre-petition debt as well as any act to obtain possession of property of the estate. 11 U.S.C. § 362(a). Under § 362(h), a willful violation of the stay gives the debtor the right to recover actual as well as punitive damages from the creditor. However, there is no express language in § 362 requiring a creditor to return property repossessed pre-petition solely because a bankruptcy petition was filed. Several opinions have determined that once a debtor in bankruptcy requests the return of property, the secured creditor must ordinarily turn the property over to the debtor. See Spears, 223 B.R. at 165-66 (collecting cases). These courts find that a creditor has a duty upon learning of the bankruptcy to return a repossessed vehicle. “Further, the creditor’s duty to return the vehicle is not dependant on receipt of adequate protection or proof of insurance. Section 542(a) contains no provision expressly requiring adequate protection as a prerequisite to turnover and it requires no preliminary action on the part of the debtor.” In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (citing In re Sharon, 200 B.R. 181, 189 (Bankr.S.D.Ohio 1996)). However, other opinions have found that a creditor may retain possession of collateral repossessed pre-petition until adequate protection" }, { "docid": "9760243", "title": "", "text": "Circuit in Waldron, which render the vehicle property of the estate and thus protected by the automatic stay. Third, Kam’s argues that the Debtor’s misrepresentation in failing to disclose her bankruptcy at the time of the vehicle sale somehow vitiates the protections of the automatic stay. This argument is also without merit. It asks the Court to ignore the plain language of § 362. The Debtor’s misrepresentation, while distasteful, does not vitiate the protection of the automatic stay. See, e.g., Graham v. Graham (In re Graham), No. 411-090, 2012 WL 1099886, at *4 (S.D.Ga. Mar. 30, 2012) (holding that debtor’s fraud does not estop debtor’s assertion of stay violation). Accordingly, the Court holds that Kam’s violated the stay. II. Willfulness of Violation Willfulness is established if it is shown that the creditor “(1) knew the automatic stay was invoked and (2) intended the actions which violated the stay.” Jove Eng’g, Inc. v. I.R.S. (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1555 (11th Cir.1996). Knowledge of the invocation of the stay requires only knowledge of the bankruptcy; it does not require either specific knowledge of the automatic stay itself or comprehension of its legal effect. Ballard, v. Freedom Auto Plaza (In re Ballard), No. 10-71415, 2010 WL 4501891, at *4 (Bankr.M.D.Ga. Nov. 2, 2010) (citing Spinner v. Cash In A Hurry (In re Spinner), 398 B.R. 84, 94 (Bankr.N.D.Ga.2008)); see also In re Esposito, 154 B.R. 1011, 1014 (Bankr.N.D.Ga.1993) (“A ‘willful violation’ of the stay, as distinguished from a ‘techni-’ cal violation,’ occurs when the creditor violates the stay with knowledge of the bankruptcy.”). Kam’s argues, albeit somewhat indirectly, that any violation of the stay was not willful because it was based on a good faith belief that the stay was inapplicable, based on the advice of counsel. This argument runs counter to well-established case-law. Whether a creditor believes that the automatic stay is inapplicable to its conduct is irrelevant to the question of whether a stay violation has occurred. See Roche v. Pep Boys, Inc. (In re Roche), 361 B.R. 615, 623 (Bankr.N.D.Ga.2005). This is true even if such" }, { "docid": "13553536", "title": "", "text": "a judgment that the debtor’s rights were not meaningful.” Id. However, here we look to Illinois law as the basis to discuss this debtor-plaintiffs property interest in her repossessed vehicle on the date she filed in bankruptcy: As under the Alabama cases, the Illinois Appellate Court has found that legal title to property subject to a security interest passes to a secured .creditor after it takes possession following default. Kouba v. East Joliet Bank, 135 Ill.App.3d 264, 268, 89 Ill.Dec. 774, 481 N.E.2d 325, 329 (3rd Dist.1985). In contrast to the conclusion in Lewis, however, Kouba found that the debtors before it had rights under Illinois law that erode a common law creditor’s claim to absolute title. IcL Having concluded that the debtors retained significant rights and responsibilities with respect to the creditor’s collateral after default, Kou-ba held that the debtors had standing to maintain an action against a third party that negligently damaged the vehicle after default and repossession. Id. at 269, 89 Ill.Dec. 774, 481 N.E.2d at 329. Spears, 223 B.R. at 164. Thus, Lewis is inapplicable when applying rights under Illinois law. “This court believes that the situation presented in this case falls squarely within Whiting Pools ’ conclusion that until a sale has taken place, property seized pre-petition pursuant to a creditor’s provisional remedy remains property of the estate, and as such, is subject to the turnover requirements of § 524(a).” Spears, 223 B.R. at 165. Therefore, Debtor can certainly attempt to vindicate her rights under § 524(a) in this proceeding if she can offer adequate protection to the Defendant. Sanctions Requested Under § 362(h) Plaintiffs one-count complaint also includes a request for sanctions for alleged intentional violation of the automatic stay. Debtor argues that once she filed her bankruptcy petition, Grand National was obligated to return her vehicle and its failure to so was a willful violation of the automatic stay. Under § 362, the filing of a bankruptcy petition operates as a stay against any act to collect a pre-petition debt as well as any act to obtain possession of property of the estate." }, { "docid": "9760242", "title": "", "text": "152 (Bankr.E.D.Penn.2008) (“By [the stay violator’s] own assessment, the [debtor] would not have survived a motion for stay relief. [The debtor] and her husband were in arrears and the [collateral was] not insured as required. Rather than seeking relief, the [stay violator] took matters into his own hands by keeping and selling the [collateral] he had already repossessed. His conduct demonstrates a disregard for the law which the [c]ourt cannot countenance.” (internal citations omitted)); see also Rutherford, v. Auto Cash, Inc. (In re Rutherford), 329 B.R. 886, 891 (Bankr.N.D.Ga.2005) (rejecting similar argument in context of lack of adequate protection). Second, Kam’s argues that the stay should not apply because the Plan, and its non-vesting provision, does not act as res judicata on Kam’s because Kam’s had neither interest in, nor notice of, the Plan prior to its confirmation. The Court need not address this argument because, as noted above, it is not the Plan’s non-vesting provision, but rather the express provisions of the Bankruptcy Code (particularly §§ 1306(a) and 1327(b)) as interpreted by the Eleventh Circuit in Waldron, which render the vehicle property of the estate and thus protected by the automatic stay. Third, Kam’s argues that the Debtor’s misrepresentation in failing to disclose her bankruptcy at the time of the vehicle sale somehow vitiates the protections of the automatic stay. This argument is also without merit. It asks the Court to ignore the plain language of § 362. The Debtor’s misrepresentation, while distasteful, does not vitiate the protection of the automatic stay. See, e.g., Graham v. Graham (In re Graham), No. 411-090, 2012 WL 1099886, at *4 (S.D.Ga. Mar. 30, 2012) (holding that debtor’s fraud does not estop debtor’s assertion of stay violation). Accordingly, the Court holds that Kam’s violated the stay. II. Willfulness of Violation Willfulness is established if it is shown that the creditor “(1) knew the automatic stay was invoked and (2) intended the actions which violated the stay.” Jove Eng’g, Inc. v. I.R.S. (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1555 (11th Cir.1996). Knowledge of the invocation of the stay requires only knowledge of" }, { "docid": "21289990", "title": "", "text": "B.R. 155, 162 (Bankr.S.D.Ohio 1999); In re Dunn, 202 B.R. 530 (Bankr.D.N.H.1996). But see, e.g., Bolen v. Mercedes Benz, Inc. (In re Bolen), 295 B.R. 803, 807 (Bankr.D.S.C.2002) (applying clear and convincing standard); In re Diviney, 211 B.R. at 961 (same); Brockington v. Citizens & S. Nat’l Bank of S.C. (In re Brockington), 129 B.R. 68, 70 (Bankr.D.S.C.1991) (same). . Section 523(a)(6) excepts from discharge any \"willful and malicious injury by the debt- or to another.” . In Jardine’s Professional Collision Repair, Inc. v. Gamble, 232 B.R. 799 (D.Utah 1999), the court followed Geiger's reasoning in concluding that § 362’s use of \"willful” modified \"violation” such that a stricter intent requirement was necessary. As aptly noted by the Colorado bankruptcy court, however: This construction is inconsistent with the fact that objections to dischargeability are narrowly construed because discharge is favored, while the automatic stay is a fundamental protection given to tire debtor designed to stop all activity by creditors against the debtor or property of the estate during the pendency of a case, unless and until modified by court order. In re Gagliardi, 290 B.R. 808, 819 n. 25 (Bankr.D.Colo.2003). . M & M argues that this good faith belief immunizes its violation of the automatic stay. As noted above, however, good faith belief is irrelevant in determining whether an automatic stay violation was willful. . Wyoming requires that: (1) \"[a] financing statement or security agreement must be filed in the office of the county clerk of the county in which the vehicle is located” and (2) \"[a] notation of the security interest must be endorsed on the certificate of title to the vehicle or motor vehicle, the endorsement to be made concurrently with the filing of the financing statement or security agreement.” Wyo. Stat. Ann. § 31-2-801. BRISCOE, Circuit Judge, concurring: I concur, but write separately to clarify why, in my view, the district court did not commit clear error in finding that M & M willfully violated the automatic stay. In its “Order On Damages,” the bankruptcy court found that “M & M had actual notice of the" }, { "docid": "22303367", "title": "", "text": "vehicle was not willful for purposes of recovery under § 362(h). The court therefore denied the Abrams’ request for monetary damages. At a March 13, 1990 hearing on the Abrams’ motion for reconsideration, the court further found that neither Southwest nor Desert took any measures within a reasonable time to return the repossessed vehicle after receiving notice of the Abrams’ bankruptcy. The court concluded nevertheless that their actions did not violate the automatic stay for purposes of § 362(h). However, the court held that appellees’ actions did constitute a violation of § 542 and, invoking its discretionary powers under § 105, awarded the Abrams $1,500.00 in damages for appellees’ refusal to promptly comply with § 542. The Abrams appeal from the denial of damages under 362(h). ISSUES The issues on appeal are (1) whether a creditor, who causes a post-petition seizure of property of the estate without initial knowledge of the debtor’s bankruptcy, violates § 362(a)(3) when it refuses to return the seized property after receiving notice of the bankruptcy; and (2) whether a “willful and intentional” refusal to return such property constitutes a “willful” violation of § 362 for purposes of damages under § 362(h). STANDARD OF REVIEW We review the bankruptcy court's findings of fact for clear error, In re Torrez, 63 B.R. 751, 753 (9th Cir.BAP 1986), aff'd, 827 F.2d 1299 (9th Cir.1987), and its conclusions of law de novo. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). DISCUSSION 1. Violation of the Automatic Stay. The automatic stay is a basic protection afforded debtors under the bankruptcy laws, and its scope is intended to be broad. In re Stringer, 847 F.2d 549, 551-52 (9th Cir.1988); see also H.R.REP. No. 95-595, 95th Cong., 1st Sess. 340-41 (1977), reprinted in 1978 U.S.CODE CONG. & ADMIN.NEWS 5787, 5963, 6296. In particular, § 362(a)(3) protects debtors from: (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. . . . § 362(a)(3) (emphasis added). The second clause of § 362(a)(3), underlined above, was added" }, { "docid": "12856947", "title": "", "text": "the Vehicle became property of the Debtors’ bankruptcy estate upon the filing of the Debtors’ petition on January 7, 2011. The commencement of a bankruptcy case also triggers an automatic stay that prevents creditors from taking “any action to obtain possession of property of the estate ... or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3) In this case, the Respondent violated the automatic stay by refusing to turn over the Vehicle upon the request of the Debtors. A creditor cannot decide unilaterally whether a debtor’s proposed plan provides adequate protection. In re Sharon, 234 B.R. 676 (6th Cir. BAP 1999). Instead, a creditor must initiate an action to bring the matter before the Bankruptcy Court. To do otherwise, and force the. debtor to file a complaint for turnover, violates section 362(a)(3). See id.; see also Thompson v. GMA Corp., LLC, 566 F.3d 699 (7th Cir.2009); In re Rutherford, 329 B.R. 886 (Bankr.N.D.Ga.2005) (Drake, J.). The Debtors are seeking payment of attorney’s fees, actual damages, and punitive damages pursuant to section 362(k). Before the Court can award such damages, the Court must determine whether the Respondent’s failure to turn over the Vehicle upon the Debtors’ request constitutes a willful violation of the automatic stay. A “willful” violation occurs when the creditor knew that the automatic stay had been invoked and intended the action that violated the stay. See In re Jove Engineering, Inc., 92 F.3d 1539, 1555 (11th Cir.1996). Here, Lawson acknowledged during the evidentiary hearing that the Respondent received notice of the Chapter 13 petition. The evidence is unclear, however, as to when the Respondent became aware of the filing and whether the Respondent had any opportunity immediately following the filing of the petition to verify the petition had in fact been filed. According to the Court’s records, the petition was filed electronically at 2:53 p.m. At that time, the Debtors’ attorney left a voice mail message with the Respondent, and Lawson testified that he was aware of the filing on January 7, 2011, but received no documentation by way of facsimile on that day." }, { "docid": "9760244", "title": "", "text": "the bankruptcy; it does not require either specific knowledge of the automatic stay itself or comprehension of its legal effect. Ballard, v. Freedom Auto Plaza (In re Ballard), No. 10-71415, 2010 WL 4501891, at *4 (Bankr.M.D.Ga. Nov. 2, 2010) (citing Spinner v. Cash In A Hurry (In re Spinner), 398 B.R. 84, 94 (Bankr.N.D.Ga.2008)); see also In re Esposito, 154 B.R. 1011, 1014 (Bankr.N.D.Ga.1993) (“A ‘willful violation’ of the stay, as distinguished from a ‘techni-’ cal violation,’ occurs when the creditor violates the stay with knowledge of the bankruptcy.”). Kam’s argues, albeit somewhat indirectly, that any violation of the stay was not willful because it was based on a good faith belief that the stay was inapplicable, based on the advice of counsel. This argument runs counter to well-established case-law. Whether a creditor believes that the automatic stay is inapplicable to its conduct is irrelevant to the question of whether a stay violation has occurred. See Roche v. Pep Boys, Inc. (In re Roche), 361 B.R. 615, 623 (Bankr.N.D.Ga.2005). This is true even if such belief was based on the advice of counsel. Tyree v. Guzman (In re Tyree), No. 10-68797, 2010 WL 4008300, at *3 (Bankr.N.D.Ga. Sept. 27, 2010) (“Neither a good faith belief that the creditor had a right to the property nor good faith reliance on the advice of counsel is relevant.”). Here, the evidence before the Court establishes that Kam’s had knowledge prior to repossession that the Debtor was in a pending Chapter 13 bankruptcy case. Before repossession, Kam’s had been served with the Debtor’s amended schedules listing the vehicle as an asset and listing Kam’s as a secured creditor, and Kam’s had been notified of the bankruptcy case by a telephone call from the Debtor’s counsel. Further, it is clear that Kam’s intended the actions that violated the stay, namely, repossessing the vehicle and not returning it to the Debtor. As shown by the case-law cited above, Kam’s reliance on counsel’s advice and its good faith belief that the stay was inapplicable are irrelevant to the question of the willfulness of its violation. Thus, the" }, { "docid": "8390316", "title": "", "text": "were not meaningful.” Id. However here we look to Illinois law as the basis to discuss this debtor-plaintiffs property interest in her repossessed vehicle. As under the Alabama cases, the Illinois Appellate Court has found that legal title to property subject to a security interest passes to a secured creditor after it takes possession following default. Kouba v. East Joliet Bank, 136 Ill.App.3d 264, 268, 89 Ill.Dec. 774, 481 N.E.2d 325, 329 (3d Dist.1985). In contrast to the conclusion in Lewis, however, Kouba found that the debtors before it had rights under Illinois law that erode a common law creditor’s claim to absolute title. Id. Having concluded that the debtors retained significant rights and responsibilities with respect to the creditor’s collateral after default, Kou-ba held that the debtors had standing to maintain an action against a third party that negligently damaged the vehicle after default and repossession. Id. at 269, 89 Ill.Dec. 774, 481 N.E.2d at 329. Spears, 223 B.R. at 164. Thus, Lewis is inapplicable when applying rights under Illinois law. “This court believes that the situation presented in this case falls squarely within Whiting Pools ’ conclusion that until a sale has taken place, property seized pre-petition pursuant to a creditor’s provisional remedy remains property of the estate, and as such, is subject to the turnover requirements of § 624(a).” Spears, 223 B.R. at 165. Therefore, Debtor can certainly attempt to vindicate her rights under § 524(a) in this proceeding if she can offer adequate protection to the Defendant. Sanctions Requested Under § 362(h) Plaintiffs one-count complaint also includes a request for sanctions for alleged intentional violation of the automatic stay. Debtor argues that once she filed her bankruptcy petition, FMC was obligated to return her vehicle and its failure to so was a willful violation of the automatic stay. Under § 362, the filing of a bankruptcy petition operates as a stay against any act to collect a pre-petition debt as well as any act to obtain possession of property of the estate. 11 U.S.C. § 362(a). Under § 362(h), a willful violation of the stay gives" }, { "docid": "18141778", "title": "", "text": "possession of property of the estate ... or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). The Debtor contends that the Defendant’s failure to return the vehicle upon her request was a willful violation of the automatic stay. She seeks an award of compensatory damages, attorney’s fees, and punitive damages. No evidence was presented as to the amount of any damages suffered by the Debtor due to the Defendant’s conduct. However, before reaching that issue, the Court must first determine whether the Defendant’s failure to turn over the Vehicle upon the request of the Debtor constitutes a willful violation of the automatic stay. The case law is split on the issue of whether a creditor violates the automatic stay by failing, upon the request of the debtor, to turn over a vehicle that was repossessed lawfully prior to the bankruptcy filing. See Mitchell v. BankIllinois, 316 B.R. 891, 899 (S.D.Tex.2004) (collecting authorities). The majority of courts hold that upon the debtor’s request and a tender by the debtor of proof of insurance, the creditor must return the vehicle or move for relief from the stay and a determination of adequate protection. Id. As the Mitchell court noted, an “emerging minority” of courts have held that the creditor is entitled to retain the vehicle until it is satisfied that its interest is protected or the bankruptcy court orders the creditor to turnover the vehicle. Id. Historically, this Court has held that a creditor who retains a vehicle repossessed pre-petition does not run afoul of the automatic stay, so long as the creditor does not dispose of the vehicle. Although it is clear that relief from the automatic stay would be required before a creditor could sell the vehicle, see In re Johnson, 2003 WL 21703529 (Bankr.N.D.Ga.2003) (Bonapfel, J.), this Court has not previously required creditors to obtain relief from the stay in" }, { "docid": "11204181", "title": "", "text": "bearing in mind that Kouba finds the property interest to be a significant one, the court concludes that Lewis is inapposite here. The court having previously determined that FMCC’s interest in plaintiffs vehicle is adequately protected, plaintiffs motion for turnover is granted. (2) Question Whether FMCC Violated the Automatic Stay Any action taken by a creditor for the purpose of collecting a prepetition debt violates the automatic stay if it amounts to pressure on the debtor to pay. Divane v. A and C Electric Co., Inc., 193 B.R. 856, 859 (N.D.Ill.), appeal dismissed, 105 F.3d 660 (7th Cir.1996). Under § 362(h), “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). If it is determined that a party has willfully violated the automatic stay, the award under § 362(h) is mandatory, rather than discretionary. Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 437 (N.D.Ill.1995). Plaintiff takes the position that in refusing to turn over the vehicle upon her attorney’s request, FMCC violated the prohibition under § 362(a)(3) of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” She does not contend that FMCC took steps to sell the vehicle after she filed her Chapter 13 petition. Thus, the alleged violation of the stay would consist of inaction, rather than the kind of affirmative action that a claim under § 362(h) commonly calls to mind. There are two lines of authority on the question whether a creditor violates the stay by refusing to turn over a debtor’s vehicle that it has repossessed prior to the filing of a petition in bankruptcy. As discussed in the paragraphs that follow, the critical question is whether turnover can be ordered before findings as to adequate protection are made. A number of courts have determined that upon a debtor’s informal request for return of its vehicle," }, { "docid": "22462868", "title": "", "text": "of law. Whether or not the defendant believed it was justified in repossessing the vehicle is of no consequence here. The fact remains that the automatic stay intervenes upon the filing of the plaintiff’s bankruptcy petition and all that is necessary to trigger the subsection (h) sanctions is (1) that the defendant’s action violated the stay and (2) that such action was willful. There is no question but that the defendant’s action in repossessing the vehicle violated the automatic stay. Code § 362(a)(3) provides in relevant part: ... a petition filed under section 301 ... of this Title ... operates as a stay applicable to all entities, of— (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. The defendant admittedly caused the repossession of the leased vehicle, the right to possession of which was property of this debtor's estate. It therefore follows without question that the defendant’s action violated the automatic stay. In determining whether the defendant’s conduct was willful, reference is made to similar language in the Code which has been the subject of judicial construction. In the context of Code § 523(a)(6), which relates to the nondischargeability of debts caused by the willful and malicious injury by the debtor to the person or property of another entity, courts have construed willful to mean intentional or deliberate. Matter of Langer, 12 B.R. 957, 959, 7 B.C.D. 1323, 1324 (D.N.D.1981), In re Stanfield, 14 B.R. 180, 8 B.C.D. 170 (Bankr.N.D.Oh.1981); In re Glazer, 25 B.R. 329, 330, 10 B.C.D. 178, 179 (BAP 9th Cir.1982). See also Legislative History of Code § 523(a)(6) which states that willful means deliberate or intentional. H.R.Rep. No. 96-595, 95th Cong., 1st Sess. 365 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 77-79 (1978). Notwithstanding the defendant’s claim that it acted in the good faith belief that post petition repossession was justified, the facts here clearly demonstrate that the defendant’s agents not only acted intentionally but also with arrogant defiance of federal law. Sanctions under Code § 362(h) are" }, { "docid": "8719198", "title": "", "text": "may itself be a violation of the automatic stay, none apply to the facts in this case. 1. Exercising Control Over An Asset of the Estate In Thompson v. General Motors Acceptance Corp., the Seventh Circuit held that a creditor who repossessed a vehicle pre-petition and refuses to return it to the debtor after a Chapter 13 case is filed violates the automatic stay. 566 F.3d 699 (7th Cir.2009). The court held that “the act of passively holding onto an asset constitutes ‘exercising control’ over it, and such action violates section 362(a)(3) of the Bankruptcy Code.” Thompson, 566 F.3d at 703. While Section 362(e) gives a secured creditor the right to request adequate protection of its interest in such property, that right is not a defense or an excuse not to return the vehicle. Instead, “a creditor must first return an asset in which the debtor has an interest to his bankruptcy estate and then, if necessary, seek adequate protection of its interests in the bankruptcy court.” 566 F.3d at 708. Thompson is informative, but not directly on point. Here, unlike the creditor in Thompson, the respondents were not in possession of the funds in the account. Instead, the funds were in the Debtor’s account at a third party bank. Nor were the funds under the control of the respondents. While the third party bank had frozen the accounts in response to the pre-petition citation notice served by the respondents, the respondents could not obtain or direct the transfer of such funds without a further court order. See, e.g., Bank of America, N.A v. Johnson (In re Johnson), 479 B.R. 159, 171 n. 56 (Bankr.N.D.Ga.2012) (fact that a garnishment order freezes funds “is not the type of ‘control’ over property of the estate that the automatic stay properly prohibits”). Cf. In re Tires N Tracks, Inc., 498 B.R. 201, 205 (Bankr.N.D.Ill.2013) (Creditor could simply have refrained from enforcing its lien and let its Illinois citation lapse, but instead “dismissed the Citation despite the fact that alternatives not requiring dismissal were available.”). The respondents would have committed an “act to obtain" }, { "docid": "12856946", "title": "", "text": "vehicle under applicable state law. See Motors Acceptance Corp. v. Rozier (In re Rozier), 348 F.3d 1305, 1307(11th Cir.2003) (“If, as the district court held, both legal title and the right of redemption of a vehicle remain with a defaulted debtor even after his creditor’s repossession of the vehicle, then the vehicle remains part of the debtor’s bankruptcy estate under section 541(a)(1) of the Bankruptcy Code.... ”); see also Bellr-Tel Credit Union v. Kalter, 292 F.3d 1350 (11th Cir.2002); Charles R. Hall Motors, Inc. v. Lewis, 137 F.3d 1280, 1285 (11th Cir.1998). Under the Georgia law applicable to this case, “ ‘ownership of collateral does not pass to a creditor upon repossession, but remains with the debtor until the creditor complies with the disposition or retention procedures of the Georgia UCC.’ ” Motors Acceptance Corp. v. Rozier (In re Rozier), 376 F.3d 1323 (11th Cir.2004) (citing Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367 (2004)). Here, the Respondent repossessed the Vehicle four days prior to the filing of the Debtors’ petition. Nonetheless, the Vehicle became property of the Debtors’ bankruptcy estate upon the filing of the Debtors’ petition on January 7, 2011. The commencement of a bankruptcy case also triggers an automatic stay that prevents creditors from taking “any action to obtain possession of property of the estate ... or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3) In this case, the Respondent violated the automatic stay by refusing to turn over the Vehicle upon the request of the Debtors. A creditor cannot decide unilaterally whether a debtor’s proposed plan provides adequate protection. In re Sharon, 234 B.R. 676 (6th Cir. BAP 1999). Instead, a creditor must initiate an action to bring the matter before the Bankruptcy Court. To do otherwise, and force the. debtor to file a complaint for turnover, violates section 362(a)(3). See id.; see also Thompson v. GMA Corp., LLC, 566 F.3d 699 (7th Cir.2009); In re Rutherford, 329 B.R. 886 (Bankr.N.D.Ga.2005) (Drake, J.). The Debtors are seeking payment of attorney’s fees, actual damages, and punitive damages pursuant to section" } ]

[ { "docid": "4279149", "title": "", "text": "greater than thirty units per acre in the downtown area, provided that certain performance requirements were met. One of the provisions in question, Section 4.4.13(1) of the City’s zoning code, as amended, provides that, within a certain area of the central business district, “[T]he maximum permissible density of a particular project will be established through the conditional use process, based upon the degree to which the development complies with the performance standards [subsequently set forth], the required findings of Section 2.4.5(E), and other applicable standards of the Comprehensive Plan and Land Development Regulations.” Block 77 is a parcel of land in the City’s central business district. It is bounded on the north by Atlantic Avenue, on the east by Southeast Second Avenue, on the south by Southeast First Street, and on the west by Southeast First Avenue. It is zoned “central business district,” which permits thirty units per acre residential density as-of-right. Block 69 is located immediately west of Block 77. It is contained within the City’s Old School Square Historic Arts District (“historic district” or OSSHAD). It is bounded on the north by Atlantic Avenue, on the east by Southeast First Avenue, on the south by Southeast First Street, and on the west by South Swinton Avenue. Block 69 is zoned as a historic district. The CRA targeted Block 77 for re-development. It solicited proposals for a mixed-use project, with appropriate parking facilities, and specified improvements to a nearby park. The developers (Block 77 Development Group) responded with a proposal, called the Worthing Place Project (“the project”), which contained a mixed-use residential and retail building of just under sixty feet in height. It included 219 residential units, 12,292 square feet of retail space and a 200-space parking garage which would be located adjacent to Block 77 on Block 69. To succeed, however, the project required conditional use approvals permitting density in excess of thirty units per acre and a height of up to sixty feet. Further, to allow construction of the proposed parking garage, a text amendment would be required to take six lots from Block 69,- which is" } ]

[ { "docid": "5984544", "title": "", "text": "MEMORANDUM OF OPINION AND ORDER RENFREW, District Judge. This case arises from the rezoning of the Foothills area in Palo Alto from “Residential Estates” (one-acre minimum residential lot size) to “0-S District” (a newly created open space classification with residential uses restricted to a ten-acre minimum residential lot size). Plaintiff alleges that she owned 291 acres of unimproved real property in this area prior to its annexation in 1959 by the City of Palo Alto. She claims that authorized agents of the City induced her and other similarly situated property owners to allow annexation of their property by promising that the zoning would remain essentially the same (one-acre minimum lot size) and that development would be permitted as soon as utilities could be extended to their property. After annexation, plaintiff's property was zoned Residential Estates, and plaintiff was thereafter assessed for the installation of sewer and water facilities, calculated on the basis of development at one dwelling per acre. After annexation, various studies of the propriety of the Foothills area zoning were made by the City and citizen groups. In connection therewith, on July 3, 1969, the Planning Staff of the City of Palo Alto sent a letter to Foothills landowners requesting a voluntary moratorium on development pending the completion of one of these studies. Plaintiff alleges that the moratorium and this specific study’s recommendation that the property be acquired for open space caused a default by a purchaser of a portion of her land. The voluntary moratorium was followed on July 19, 1971, by the passage of Ordinance No. 2612 which established a six-month moratorium on subdivision construction, zone changes, use permits and building and grading permits. The moratorium was extended until August 28, 1972, by Ordinance No. 2647. On June -5, 1972, Palo Alto amended its Municipal Code to establish the new O-S District classification, and on August 14, 1972, pursuant to Ordinance No. 2671, plaintiff’s land was so reclassified. Plaintiff’s principal contention is that the rezoning precludes all reasonable uses of her land while bearing no reasonable relation to the public health, safety, morals or public welfare;" }, { "docid": "1750660", "title": "", "text": "a vote of 5 to 2. (The two dissenting Council members expressed concern that the adoption of an 0-1 zone would have a detrimental impact on Nasierowski’s plans, and refused to adopt an 0-1 zone without first affording Nasier-owski a public hearing and opportunity to object.) For several days after Council’s adoption of the new ordinance, as amended by Rice’s motion, Nasierowski continued his efforts to resolve the controversy pertaining to his site plan specifications. Na-sierowski was on the verge of accomplishing his objective by receiving final site plan approval (i.e., a building permit) when the City Manager directed the responsible officials to reject the permit application in light of the recently adopted zoning ordinance. This was the first indication Nasierowski received that his property had been rezoned 0-1. The City rescinded the previously issued preliminary site plan approval, totally aborting Nasierowski’s project. Without applying to the City’s Board of Zoning Appeals for a variance from the newly enacted 0-1 zoning restriction, Na-sierowski commenced suit in federal district court. In his complaint, Nasierowski alleged, among other things, that he had been denied procedural due process in violation of the fourteenth amendment when Council, acting in executive session, amended the proposed zoning ordinance without affording him an opportunity to be heard. Nasierowski requested a permanent injunction prohibiting the City from enforcing the allegedly invalid 0-1 zoning classification against the property. The district court granted the City’s motion for summary judgment, concluding that Nasierowski’s constitutional claim was not ripe for adjudication because he had failed to seek a variance from the Board of Zoning Appeals, as he was entitled to do under M.C.L. § 125.585. Although unnecessary to its decision, the district court further concluded that Nasierowski had no protected property interest in the C-3 zoning classification, and thus did not have a colorable due process claim. In the trial court’s view, no such property interest could have vested under Michigan law until Nasierowski had secured a building permit and actually commenced construction on the site. The district court’s rejection of Nasier-owski’s procedural due process claim for failure to exhaust his administrative" }, { "docid": "11469378", "title": "", "text": "three factors. See Amazon.com, 239 F.3d at 1350 (“[A] movant cannot be granted a preliminary injunction unless it establishes ... likelihood of success on the merits....”). í|i rj» Sfi íjí For the reasons stated, the court denies Wireless’ April 28, 2005 motion for preliminary injunction. SO ORDERED. . Plaintiff's preliminary injunction motion is before the court under the procedure permitted by Fed.R.Civ.P. 43(e) and is being decided on the papers, without an evidentiary hearing. See, e.g., Jones v. Bush, 122 F.Supp.2d 713, 715 (N.D.Tex.) (Fitzwater, J.), aff'd, 244 F.3d 134 (5th Cir.2000) (per curiam) (unpublished table decision). Briefing was completed on August 17, 2005, when plaintiff filed its final reply brief (denominated “surreply''). As permitted by Rule 52(a), the court sets out its findings of fact and conclusions of law in this memorandum opinion and order. . Although Sony Ericsson Mobile Communications AB, a Swedish corporation, is also a defendant in this case, Wireless moves for a preliminary injunction only against Sony. . Wireless does not contend that Sony’s devices infringe the T73 patent under the doctrine of equivalents. . Wireless maintains that its expert, Dr. Ger-hard Deffner (“Dr.Deffner”), is \"a person of at least ordinary skill in the art.” P. Br. 7. Dr. Deffner opines that a person of ordinary skill in the art at the time of the filing of the T73 patent “would typically have had at least a baccalaureate degree applicable to one or more of the following fields: human factors, ergonomics, computer science, and industrial design.” P.App. 300. In addition, the person \"would have had several years of experience in the design and the evaluation of hand-held computing devices.” Id. Sony challenges Dr. Deffner's expert opinions on several grounds, but it does not contest that he is a person of ordinary skill in the art or his definition of who would be such a person. . Wireless has submitted proposed constructions for ten terms within claim 1. For purposes of Wireless' preliminary injunction application, Sony does not dispute the proposed constructions of seven of the ten terms, but it does challenge the proposed constructions of" }, { "docid": "2213177", "title": "", "text": "sought to add a claim that an ordinance enacted in 2009, which had imposed additional requirements on construction along the Central Delaware River waterfront, was unconstitutional. At issue in this appeal are the District Court’s rulings on these motions. The District Court held that the rescission of the height restriction mooted Waterfront’s federal constitutional claims against the 2006 ordinance, denied Waterfront’s motion to further amend its complaint to attack the width restriction, and granted summary judgment for the City on all other claims, including those based on the 2009 ordinance. For the reasons that follow, we find no reason to disturb any of the District Court’s rulings. We will, therefore, affirm the judgment of the District Court. I. Factual Background A. The Initial Stages of Waterfront’s World Trade Center Project The key facts relevant to this appeal are not in dispute. The origins of this protracted controversy can be traced to 1987, when Waterfront purchased a 5.8-acre lot (the “Site”) to develop a high-rise project (the “Project”) in the Central Riverfront District of Philadelphia, Pennsylvania. The Site is located at the southwest corner of Delaware Avenue (now known as Columbus Boulevard) and Noble Street. Waterfront pursued the development of the Project over the next several years. In 1988, with the support of a recommendation letter from Philadelphia Mayor Wilson Goode, Waterfront obtained an exclusive license to develop its Project as a World Trade Center-type development. At the time of Waterfront’s purchase, the Site was zoned G-2 industrial. Consequently, Waterfront worked with the Philadelphia City Planning Commission (“Planning Commission”) to obtain rezoning of the Site. The Planning Commission is the Philadelphia agency empowered to propose zoning ordinances to the Philadelphia City Council (“City Council”), and is required by law to make recommendations to the Mayor for transmission to the City Council on any matters that may affect zoning. See 351 Pa.Code §§ 4.4-601, 4.4-604 (Supp.2012). The Planning Commission agreed to support Waterfront’s request to rezone the Site C-4 commercial, a permissive designation that would allow Waterfront to build a mixed-use, high-rise project. In exchange, Waterfront agreed to enter into a series" }, { "docid": "4844471", "title": "", "text": "HAMILTON, Circuit Judge. Plaintiffs Commonwealth Plaza Condominium Association, Suhail al Chalabi, Virginia M. Harding, and Darren Moss sued the City of Chicago in federal court alleging that an opinion of the Illinois Appellate Court interpreting the Home Rule Provision of the Illinois Constitution in a zoning dispute deprived them of constitutional due process. The district court dismissed the claim as barred by the Rooker-Feldman doctrine, under which federal district and circuit courts lack jurisdiction to review decisions of state courts. Plaintiffs appeal, and we affirm the dismissal for lack of jurisdiction. I. Background In 2004, Resurrection Health Care filed an application to rezone property around Saint Joseph Hospital in Chicago to allow Resurrection to conduct further development of the campus. Plaintiffs own property within 250 feet of the property Resurrection sought to rezone. They attended public hearings about the rezoning and filed objections to it. In 2006, after those hearings were completed, the City Council of Chicago approved the rezoning and amended the Chicago Zoning Ordinance to establish Institutional Planned Development 1019 (“IPD 1019”), which changed the zoning classification of the land Resurrection sought to develop. Plaintiffs then filed a complaint in state court against the City of Chicago and other defendants claiming that the IPD 1019 ordinance violated plaintiffs’ constitutional rights under the due process clauses of the Illinois and U.S. Constitutions because it was inconsistent with provisions of the Chicago Zoning Code. The state trial court granted summary judgment in favor of the City, finding that even though IPD 1019 was inconsistent with the Chicago Zoning Code, that fact alone did not support an order invalidating IPD 1019. Plaintiffs appealed, and the Illinois Appellate Court issued a published opinion affirming the trial court’s decision. The appellate court held: “The IPD ordinance enacted by the city council in this case is not rendered unconstitutional simply because this municipality, a home rule unit, violated its own self-imposed ordinances in enacting the IPD ordinance.” Condominium Ass’n of Commonwealth Plaza v. City of Chicago, 399 Ill.App.3d 32, 338 Ill.Dec. 390, 924 N.E.2d 596, 606 (2010). The Illinois Supreme Court denied plaintiffs’ petition" }, { "docid": "22753735", "title": "", "text": "acres as a park. Street rights-of-way would require 5.7 acres. Following consultations with members of the City Council, the Planning and Zoning Commission and the City Building Inspector, a public hearing was held before the Planning and Zoning Commission in January, 1987. At the close of the hearing the plan was rejected by a 5-2 vote. After the proposal underwent additional revisions, a second hearing before the Planning and Zoning Commission was held in March, 1987. Three votes on the proposal at this meeting — one to reject the proposal, one to approve the proposal, and one to pass the issue to the City Council without a recommendation — resulted in 4-4 ties. The City Council then convened a public hearing on the proposal on March 19, 1987. The Council rejected the proposal by a 5-1 vote. Under Alabaster’s zoning ordinance, the City Council has final authority on the question of rezoning; it is not required to accept the recommendation of the Planning and Zoning Commission. If the City Council refuses to rezone an area PDD, the Planning and Zoning Commission must wait at least six months before reconsidering the same rezoning request. If the City Council rezones an area PDD, the developer must submit a final plan to the Planning and Zoning Commission, which then has exclusive control over amendments and modifications to the plan. Shortly after the City Council vote refusing to rezone the area PDD, plaintiffs filed this action in district court pursuant to 42 U.S.C. § 1983, seeking damages and injunctive relief and alleging that the City’s decision deprived them of due process in violation of the Fourteenth Amendment. The complaint contained no allegations of a taking of property without just compensation. At trial the parties stipulated that the court, rather than the jury, would decide all issues pertaining to damages should the plaintiffs succeed on the question of liability. The court granted the City’s motion for a directed verdict as to procedural due process, but denied the motion for a directed verdict as to substantive due process. The court granted Greenbriar’s motion for directed verdict" }, { "docid": "4279151", "title": "", "text": "in the City’s historic district, and permit them to be developed under standards applicable to the central business district. The developers submitted their proposal to the City’s historic preservation board, which issued a recommendation favoring the needed text amendment. In turn, the planning and zoning board, after considering the preservation board’s recommendation, voted 4-1 to recommend approval of the text amendment to the city commission. Next, the planning and zoning board reviewed the developers’ applications for conditional use for density above thirty units per acre and for height up to sixty feet. It approved those applications by a vote of 4-2 and 5-1, respectively. The planning and zoning board documented its analysis in a report which was provided to the city commission. The city commission ultimately voted to grant a conditional use approval (the “development order”) for the project. It authorized an increase in density from thirty dwelling units per acre to ninety-two units per acre, and an increase in height from forty-eight feet to sixty feet. The city commission also held a quasi-judicial hearing in which it adopted Ordinance No. 47-99, the “text amendment.” This operated to re-zone the property where the garage was proposed to a hybrid central business district/historic district zone, in which the parking garage was a permitted use. The plaintiff property owners object to the commission’s action, contending that it crams six stories of apartments (219 units), up to 17,900 square feet of retail space, and 416 parking spaces onto an area of 2.38 acres. They assert the project will dominate the landscape of the western portion of downtown, and be “utterly gi gantic” in comparison to its neighbors in the historic district. Driven by these concerns, they filed this lawsuit seeking to have the City’s conditional use ordinance declared void for vagueness. Jurisdiction This court possesses removal jurisdiction pursuant to 28 U.S.C. § 1441 because the plaintiffs’ complaint contains claims challenging a municipal ordinance under 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment. Discussion A. STANDARD OF REVIEW Summary judgment is warranted if the pleadings, depositions, answers to interrogatories" }, { "docid": "23519407", "title": "", "text": "respectively. The City rejected each of these applications although the type and density of the proposed residential units could potentially have conformed to the City’s general land-use plan and zoning ordinances. Ponderosa Homes then submitted a modified plan for development of 190 residential units. While this last application was pending, appellants purchased the Dunes and pursued the application. Under California law, appellants had to obtain the City’s approval of a tentative map in order to develop the Dunes. See generally Cal.Gov’t Code §§ 66410 to 66499.58 (West 1983 & Supp.1990). A tentative map is a precise drawing detailing the design of a project and the conditions on and around the proposed development site that must be met before a final map can be approved and actual development begun. Typically, an advisory board, such as a local planning commission, reviews a development application initially and recommends acceptance or rejection of a tentative map. Id. § 66452.1 (Supp.1990). The local legislative body may then follow or reverse the advisory board by approving, conditionally approving, or denying the tentative map. Id. § 66452.2 (Supp.1990). The specific applications filed by Del Monte, including those of its predecessor in title, and the City’s responses are detailed in the discussion below. PROCEDURAL HISTORY Appellants’ complaint sets- out eight separate “claims for relief,” only five of which allege substantive violations of state or federal law. The five substantive claims are based on the Fifth Amendment’s taking clause as incorporated in the Fourteenth Amendment, the equal protection and due process clauses of the Fourteenth Amendment, and common law principles of estop-pel and unjust enrichment. The remaining three claims identify remedies that appellants seek based on the five substantive grounds for recovery. In the remedial claims, appellants request an injunction against the City, relief under 42 U.S.C. § 1983, and declaratory relief under 28 U.S.C. §§ 2201, 2202. The district court dismissed appellants’ taking claim as unripe and the unjust enrichment claim as an impermissible variant of the taking claim. The court also held that the equal protection and due process claims were unripe but alternately dismissed those claims" }, { "docid": "23704187", "title": "", "text": "land, the Campbells sold 1.17 acres. Thus, the acreage is less than nine acres, rendering the density figures given by the parties too low. Nevertheless, because our analysis does not change whether the acreage is nine or ten, we will continue to refer to the land as ten acres. . There is some dispute about whether there were four or five requirements for tentative approval. Plaintiffs submitted one document from the Rainbow City Planning Commission stating the requirements for tentative approval were: (1) name, address, and phone number of the property owner, (2) the address of the property under consideration, (3) a sketch of the property with building locations, and (4) zoning and land use information. The document attached to the Plaintiffs' June 8 letter, however, contained another additional requirement: (5) approval subject to plans and specifications and after review by building, fire, and engineering departments. This dispute is not relevant to our analysis. . Some circuits have read Olech to still require ill will on the part of the defendant. See, e.g. Purze v. Village of Winthrop Harbor, 286 F.3d 452, 454 (7th Cir.2002). Other circuits following Olech have found that a plaintiff can also bring a successful equal protection claim merely by \"negativing every conceivable basis which might support” the government action. Warren v. City of Athens, Ohio, 411 F.3d 697, 711 (6th Cir.2005) (quotation and citation omitted). Without deciding whether illegal animus is required to show a equal protection violation, we find that the Campbells have not satisfied either test. . The Planning Commission rezoned the land on which the Regency Park development was built as a Planned Unit Development without requiring application or concept plan. Furthermore, Plaintiffs point out that the intent of a Planned Unit Development is a mixed-use development and that the Regency Point development has only residential housing. . Moreover, the sixteen-unit Hidden Creek development can hardly be considered similarly situated to the Plaintiffs’ 144 -180 unit project. The impact on a community of a sixteen-unit apartment complex that violates a zoning requirement is quite different from a 144-180 unit apartment complex. It" }, { "docid": "22753733", "title": "", "text": "ANDERSON, Circuit Judge: The city of Alabaster appeals from a judgment of the district court holding that its rejection of plaintiffs’ request for the rezoning of certain property constituted a violation of substantive due process. The district court ordered that the property at issue be rezoned pursuant to plaintiffs’ request and awarded $75,000 damages. We find that, as the decision of the City was a final one, this question is ripe for adjudication. Furthermore, we hold that the City’s refusal to rezone was not arbitrary and capricious, and hence that plaintiffs suffered no violation of their substantive due process rights. Accordingly, we reverse the judgment of the district court. I. FACTS In 1970 the city of Alabaster (“City”) first adopted a zoning ordinance. The property at issue in this action, consisting of 76 acres, was zoned multi-family residential, which it remained for 16 years. In October 1986 the city adopted a new zoning ordinance and map, which rezoned the property at issue from multi-family residential to single-family residential. The 1986 zoning ordinance, which is currently in force, provides for a zoning classification known as “Planned Development District” (“PDD”). A PDD “is a method of development which permits a tract of land to be developed as one lot, rather than separate lots.” Zoning Ordinance, City of Alabaster, Article VI, Section 15.1 (1986). The PDD is designed “to encourage coordinated development; to permit higher densities in conjunction with functional open space; to promote efficient use of land; and to promote preservation and enhancement of existing natural landscape fea tures.” Id. Uses permitted in a PDD include “multi and single family residential dwellings, townhouses, and accessory structures; and uses permitted in the B-3 Business District [i.e. community shopping district].” Id. In November 1986, Greenbriar, Ltd. and Mary Roensch (“Greenbriar” or “plaintiffs”), the property owners, submitted a preliminary PDD plan to the City, seeking to have the land at issue rezoned from single-family residential to PDD. The plan proposed that the 76 acres be developed with 49.8 acres as apartments and townhouses, 8.1 acres as retail and commercial, 11.1 acres as single-family, and 2.1" }, { "docid": "19360515", "title": "", "text": "SCHROEDER, Circuit Judge: The plaintiff, Dwight G. Nelson, filed this action claiming that he was denied due process and equal protection of the laws when the Selma City Council denied his application to rezone his property to permit additional development. He appeals from the district court’s judgment for the defendant after a bench trial. The principal issue before us is whether the district court erred in holding that the city council’s action was rationally related to promotion of public health, safety or welfare. Nelson argues that the district court should have found that the city council acted arbitrarily when it rejected his application for rezoning in apparent response to the concerns voiced by residents of the area that development of the requested density would adversely affect the environment of the neighborhood. We affirm. In 1979, plaintiff’s predecessor in interest, Larry J. Raven, owned 52 acres of land located in Fresno County immediately adjacent to Selma (the “Raven property”). The Raven property was planned and zoned for agriculture. In March, 1979 Raven sought and obtained a general plan amendment in which 13 acres of the Raven property was planned to be rezoned as R-3, high-density residential. The Raven property was annexed to Selma in June 1980. The property, including the 13 acres, was zoned R-l, low-density residential, until ready for development. In December, 1981 Dwight Nelson bought the Raven property for approximately $900,000. In February, 1982 Nelson sought and obtained rezoning of a portion of the Raven property, not including the 13 acres, to R-2, medium-density multiple-family residential. Selma’s general plan was amended in 1983, and the 13 acres continued to be planned as high-density residential. In October, 1984 Nelson submitted an application to Selma to rezone the remaining 39 acres of the Raven property, including a request that the 13 acres be rezoned to R-3, high-density residential. It is the denial of that request with which we are concerned here. The planning commission recommended that the city council adopt the rezoning. At a city council meeting on January 7, 1985 a number of residents of the area adjacent to the" }, { "docid": "22753734", "title": "", "text": "in force, provides for a zoning classification known as “Planned Development District” (“PDD”). A PDD “is a method of development which permits a tract of land to be developed as one lot, rather than separate lots.” Zoning Ordinance, City of Alabaster, Article VI, Section 15.1 (1986). The PDD is designed “to encourage coordinated development; to permit higher densities in conjunction with functional open space; to promote efficient use of land; and to promote preservation and enhancement of existing natural landscape fea tures.” Id. Uses permitted in a PDD include “multi and single family residential dwellings, townhouses, and accessory structures; and uses permitted in the B-3 Business District [i.e. community shopping district].” Id. In November 1986, Greenbriar, Ltd. and Mary Roensch (“Greenbriar” or “plaintiffs”), the property owners, submitted a preliminary PDD plan to the City, seeking to have the land at issue rezoned from single-family residential to PDD. The plan proposed that the 76 acres be developed with 49.8 acres as apartments and townhouses, 8.1 acres as retail and commercial, 11.1 acres as single-family, and 2.1 acres as a park. Street rights-of-way would require 5.7 acres. Following consultations with members of the City Council, the Planning and Zoning Commission and the City Building Inspector, a public hearing was held before the Planning and Zoning Commission in January, 1987. At the close of the hearing the plan was rejected by a 5-2 vote. After the proposal underwent additional revisions, a second hearing before the Planning and Zoning Commission was held in March, 1987. Three votes on the proposal at this meeting — one to reject the proposal, one to approve the proposal, and one to pass the issue to the City Council without a recommendation — resulted in 4-4 ties. The City Council then convened a public hearing on the proposal on March 19, 1987. The Council rejected the proposal by a 5-1 vote. Under Alabaster’s zoning ordinance, the City Council has final authority on the question of rezoning; it is not required to accept the recommendation of the Planning and Zoning Commission. If the City Council refuses to rezone an area" }, { "docid": "7987874", "title": "", "text": "district commercial (C-3) with the intent of establishing “a community-regional commerce district ... in recognition of the existing downtown commercial development and of the need for its future expansions, rehabilitation and redevelopment.” Hastings, Minn., Zoning Ordinance § 10.17 subd. 1. Permitted land uses in the C-3 zone include commercial establishments, public and semi-public buildings, private clubs, second-floor apartments, parking lots and “[accessory uses incidental to the foregoing principal uses.” Id. at subd. 2. Uses allowed under special permit include gas stations, drive-in establishments, creameries and small animal clinics. Section 10.17 does not mention churches. The Cornerstone Bible Church was organized in Hastings in 1983. The Church first met in Pastor James Bzoskie’s home. The congregation quickly outgrew that location and the Church rented space in the local high school. Seeking a permanent home, the Church first purchased property on 10th Street in an industrial zone, making the purchase contingent on City approval of a change in zoning to residential use, which would encompass churches. The City denied the zoning change but the Church went ahead with the purchase. During this time the Church leased the Caturia Building in the central business district and began conducting church activities there. The City notified the Church that it must discontinue using the Caturia Building for church activities. The Church responded by negotiating to purchase a theatre in the central business district. The Church requested the City to amend the zoning ordinance to allow church activities at the theatre. The City denied the request but gave the Church an extension of time to vacate the Caturia Building. The Church then proposed yet another location, at 515 East 3rd Street in an area zoned for industrial use. The City gave preliminary approval to a change in zoning for the site but the Church withdrew its request and requested rezoning of its 10th Street property. The City denied the request and continued to press the Church to leave the Caturia Building. The Church then filed this lawsuit. Although the Church has requested zoning variances or amendments with respect to both industrial and commercial zones, this lawsuit" }, { "docid": "19209973", "title": "", "text": "court had addressed the merits of these claims. Id. . If the Kawaokas' claim is that the specific plan requirement or the RR and SF zoning are unworkable restrictions that render their property unusable, they must first attempt to \"use” their property by attempting to prepare a specific plan or to submit a development plan. However, a claim that the general plan's density designation and specific plan requirement are irrational is considered as part of the Kawaokas’ facial challenge. . The Kawaokas argue that the district court misapplied Sederquist v. City of Tiburon, 765 F.2d 756 (9th Cir.1984). The district court properly interpreted Sederquist to question whether a city may properly require joint action by property owners of a subdivision to satisfy a condition precedent to approval of an application to develop their land. See Kawaoka, 796 F.Supp. at 1326. There is no such joint action requirement in this case. The Kawaokas also argue that the district court found the specific plan requirement to be reasonable only because specific plans are authorized under state law. This mischaracterizes the district court’s opinion, which actually found the requirement to be valid because it is a \"conceivably rational means of attaining ... larger community goals.” Id. at 1326. . The Kawaokas cite Harris v. County of Riverside, 904 F.2d 497 (9th Cir.1990), for the proposition that the City may not require them to pay fees to regain viable use of their land. This case is inapplicable. Harris is a procedural due process case in which a local planning agency specifically rezoned the plaintiffs land by revising the general plan without providing notice to the plaintiff. Id. at 501-04. In Harris we recognized that the only way in which the plaintiff could object to the general plan amendment would be to pay an application fee to reamend the plan. Because the plaintiff was not warned during the planning process that his property had been targeted specifically for rezoning, he was denied procedural due process. Id. In the present case, the Kawaokas were apprised of the proposed general plan amendments and they participated fully in" }, { "docid": "2768187", "title": "", "text": "and enjoined the City to perform its obligations thereunder. The City appeals, asking us to find as a matter of law that there was no settlement and to instruct the district court to enter final judgment in accordance with its order granting the City’s motion for summary judgment. The district court’s dispositive injunctive order is ambiguous in several important respects; consequently, we are unable to determine whether the court erred in concluding that the parties settled their case. We therefore vacate the court’s injunction and remand the case for further findings of fact and conclusions of law on this issue. I. Jack H. Londono purchased one and one-half acres of land in Gainesville, Florida for $200,000 in March 1979 for the purpose of building a sixty-unit apartment complex. At that time, the parcel was zoned R-3, which permitted the construction of forty-three units per acre. Londono submitted a site plan for the apartment complex to the City of Gainesville Plan Board. In July 1979, while the Board had Londono’s site plan under consideration, the City of Gainésville declared a moratorium on real estate development in the area in which Londono’s tract was located. In October 1979, the City rezoned Londono’s property R-l, thereby reducing the permissible density of multifamily development to a maximum of eight units per acre. Londono objected to this downzoning and sued the City in state circuit court to block the change. On July 11, 1980 the circuit court concluded that the City had acted arbitrarily in rezoning Londono’s property R-l and ordered the City to zone it “consistent with present land use and zoning” within the area. The court retained jurisdiction of the case to review the City’s compliance with its order. On July 16, 1980, Londono brought this suit, alleging that the City’s downzoning of his property to R-l denied him the effective use of his property in violation of the fourteenth amendment due process clause. He sought to recover as damages the profits he would have obtained had he constructed the sixy-unit apartment complex outlined in the site plan he submitted to the City’s" }, { "docid": "14260167", "title": "", "text": "BAUER, Chief Judge. Plaintiffs, Louis Burrell and Jean Bur-rell, appeal from the district court's dismissal of their complaint alleging that defendants, the City of Kankakee (“City”), and the Kankakee County Housing Authority (“KCHA”), violated their federally-protected rights under the Fair Housing Act, 42 U.S.C. §§ 3604 and 3617, and their substantive due process rights under 42 U.S.C. § 1983. At the close of the plaintiffs’ evidence, the district court granted defendants’ motion to dismiss on the ground that neither the defendant City nor the defendant KCHA violated any of plaintiffs’ constitutional or other federally-protected rights. We affirm. I. The “Allison” Case On May 7, 1980, the plaintiffs filed a petition with the Plan Commission of the City of Kankakee to rezone certain properties in the city from single-family residence to multi-family residence. The Plan Commission held public hearings and voted unanimously to deny the plaintiffs’ petitions because of (1) uncertainty of participation by title owners; (2) density of population; and (3) the need of variances. Later, the Kankakee City Council voted to concur in the Plan Commission’s recommendation to deny plaintiffs’ petitions. On September 16, 1980, the City adopted a Planned Unit Residential Development Ordinance (“PURD Ordinance”) to authorize the construction of planned unit residential developments. The PURD Ordinance required that: (1) a developer first apply with the City for tentative approval of his plan; (2) that a public hearing be held at which time the Plan Commission would recommend tentative approval or denial of the proposal; and (3) that upon approval by the City Council, the developer apply for final approval. The Plan Commission designated four areas in the city available for such development. On February 24, 1981, pursuant to the PURD Ordinance, the plaintiffs submitted two site plans to the Kankakee City Council for tentative approval. The City Council referred them to the City Plan Commission. The plaintiffs’ PURD proposals are called the Allison Housing Complex. The first proposal, “Plan C”, provides for the development of 72 two-bedroom units accompanied by 208 parking spaces. Plaintiffs’ other proposal, the “Alternate” site plan, provides for 68 two-bedroom units accompanied by" }, { "docid": "11469377", "title": "", "text": "asserted claims are dependent on claim 1. Because dependent claims necessarily include all limitations of the claims on which they depend, Wireless has not demonstrated that it will likely prove infringement of any of the asserted dependent claims at trial. The intrinsic evidence provides adequate grounds for the court to construe the term “alphanumeric keyboard.” Accordingly, the court does not rely on any extrinsic evidence, including expert reports. See Vitronics, 90 F.3d at 1583 (If “an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term ..., it is improper to rely on extrinsic evidence.”). Y Wireless has not demonstrated that it will likely prove infringement of any claim of the ’173 patent at issue. The court need not therefore consider Sony’s challenges to the patent’s validity. Even assuming ar-guendo that the patent is valid, Wireless has not met its burden of showing a reasonable likelihood of success on the merits. Without this showing, Wireless is not entitled to a preliminary injunction, and the court need not consider the remaining three factors. See Amazon.com, 239 F.3d at 1350 (“[A] movant cannot be granted a preliminary injunction unless it establishes ... likelihood of success on the merits....”). í|i rj» Sfi íjí For the reasons stated, the court denies Wireless’ April 28, 2005 motion for preliminary injunction. SO ORDERED. . Plaintiff's preliminary injunction motion is before the court under the procedure permitted by Fed.R.Civ.P. 43(e) and is being decided on the papers, without an evidentiary hearing. See, e.g., Jones v. Bush, 122 F.Supp.2d 713, 715 (N.D.Tex.) (Fitzwater, J.), aff'd, 244 F.3d 134 (5th Cir.2000) (per curiam) (unpublished table decision). Briefing was completed on August 17, 2005, when plaintiff filed its final reply brief (denominated “surreply''). As permitted by Rule 52(a), the court sets out its findings of fact and conclusions of law in this memorandum opinion and order. . Although Sony Ericsson Mobile Communications AB, a Swedish corporation, is also a defendant in this case, Wireless moves for a preliminary injunction only against Sony. . Wireless does not contend that Sony’s devices infringe the T73 patent under" }, { "docid": "1750659", "title": "", "text": "new zoning ordinance, as proposed and recommended by the planning commission and as indicated in the public notices issued by the City Council, would have had no adverse impact on his longstanding plans to develop the parcel for retail and warehouse uses. At the conclusion of the public hearing held on September 13, 1989, Council convened in executive session. Minutes of that meeting disclosed that Council was prepared to adopt the zoning ordinance that had been recommended and proposed by the planning commission in toto, without modification. At the inception of the meeting, however, councilman Rice insisted that the planning commission's recommended ordinance be amended so as to rezone a narrow strip of land consisting of twelve to fifteen parcels from C-3 (as recommended by the commission) to 0-1, a more restrictive classification that permitted only office development. The land subject to Rice’s proposed amendment conveniently encompassed Nasierowski’s property. Rice further suggested that two existing, non-conforming uses (a dry cleaner and a heating contractor) be selectively exempted from the 0-1 zone. Rice’s motion passed by a vote of 5 to 2. (The two dissenting Council members expressed concern that the adoption of an 0-1 zone would have a detrimental impact on Nasierowski’s plans, and refused to adopt an 0-1 zone without first affording Nasier-owski a public hearing and opportunity to object.) For several days after Council’s adoption of the new ordinance, as amended by Rice’s motion, Nasierowski continued his efforts to resolve the controversy pertaining to his site plan specifications. Na-sierowski was on the verge of accomplishing his objective by receiving final site plan approval (i.e., a building permit) when the City Manager directed the responsible officials to reject the permit application in light of the recently adopted zoning ordinance. This was the first indication Nasierowski received that his property had been rezoned 0-1. The City rescinded the previously issued preliminary site plan approval, totally aborting Nasierowski’s project. Without applying to the City’s Board of Zoning Appeals for a variance from the newly enacted 0-1 zoning restriction, Na-sierowski commenced suit in federal district court. In his complaint, Nasierowski alleged, among" }, { "docid": "22753736", "title": "", "text": "PDD, the Planning and Zoning Commission must wait at least six months before reconsidering the same rezoning request. If the City Council rezones an area PDD, the developer must submit a final plan to the Planning and Zoning Commission, which then has exclusive control over amendments and modifications to the plan. Shortly after the City Council vote refusing to rezone the area PDD, plaintiffs filed this action in district court pursuant to 42 U.S.C. § 1983, seeking damages and injunctive relief and alleging that the City’s decision deprived them of due process in violation of the Fourteenth Amendment. The complaint contained no allegations of a taking of property without just compensation. At trial the parties stipulated that the court, rather than the jury, would decide all issues pertaining to damages should the plaintiffs succeed on the question of liability. The court granted the City’s motion for a directed verdict as to procedural due process, but denied the motion for a directed verdict as to substantive due process. The court granted Greenbriar’s motion for directed verdict on the issue of whether, for purposes of 42 U.S.C. § 1983, the defendants were acting under color of law. At the conclusion of trial, the court submitted to the jury the following special interrogatory: Was a majority of the Mayor and City Council of the City of Alabaster which denied plaintiffs’ PDD zoning application, arbitrary and capricious in reaching their decision? Rll:105. The jury responded in the affirmative, and the court entered judgment for plaintiffs, ordering the City to amend its zoning map and zoning ordinance to rezone the subject property to PDD, and directing the City to determine whether the property would be developed pursuant to Greenbriar’s original or amended plan. The City subsequently moved that the court set aside, alter or amend the order and judgment, contending, inter alia, that the court erred in permitting the jury to determine whether the City acted arbitrarily and capriciously. The court denied the motion, holding that the issue was properly submitted to the jury and that the jury’s answer to the special interrogatory constituted a" }, { "docid": "22545665", "title": "", "text": "Mr. Justice Powell delivered the opinion of the Court. The question in this case is whether municipal zoning ordinances took .appellants’ property without just compensation in violation of the Fifth and Fourteenth Amendments. I After the appellants acquired five acres of unimproved land in the city of Tiburón, Cal., for residential development, the city was required by state law to prepare a general plan governing both land use and the development of open-space land. Cal. Govt. Code Ann. §§ 65302 (a) and (e) (West Supp. 1979); see § 65563. In response, the city adopted two ordinances that modified existing zoning requirements. Tiburón, Cal., Ordinances Nos. 123 N. S. and 124 N. S. (June 28, 1973). The zoning ordinances placed the appellants’ property in “RPD-1,” a Residential Planned Development and Open Space Zone. RPD-1 property may be devoted to one-family dwellings, accessory buildings, and open-space uses. Density restrictions permit the appellants to build between one and five single-family residences on their 5-acre tract. The appellants never have sought approval for development of their land under the zoning ordinances. The appellants filed a two-part complaint against the city in State Superior Court. The first cause of action sought $2 million in damages for inverse condemnation. The second cause of action requested a declaration that the zoning ordinances were facially unconstitutional. The gravamen of both claims was the appellants’ assertion that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments. The complaint alleged that land in Tiburón has greater value than any other suburban property in the State of California. App. 3. The ridge-lands that appellants own “possess magnificent views of San Francisco Bay and the scenic surrounding areas [and] have the highest market values of all lands” in Tiburón. Id., at 4. Rezoning of the land “forever prevented [its] development for residential use. . . .” Id., at 5. Therefore, the appellants contended, the city had “completely destroyed the value of [appellants’] property for any purpose or use whatsoever....” Id., at 7. The city demurred, claiming that the complaint failed to state a cause" } ]

[ { "docid": "3751717", "title": "", "text": "at 183, as well as contemporaneous written documents detailing inadequacies in performance. Defendant Exhs. E & E. Plaintiff challenges the accuracy of the criticisms of his work performance. However, plaintiffs perception of himself, and of his work performance, is not relevant. It is the perception of the decision-maker which is relevant. See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980); McDaniel v. Mead Corp., 622 F.Supp. 351, 360 (W.D.Va.1985); Rosengarten v. J.C. Penney Co., 605 F.Supp. 154, 157 (E.D.N.Y.1985). Plaintiff does not present a material issue of fact on the question of the quality of his work by merely challenging the judgment of his superiors. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Plaintiff also contends that all but one of defendant’s witnesses were unfamiliar with plaintiff’s work. However, plaintiff’s employers were entitled to rely on reports of plaintiff’s performance given by his immediate supervisor, Stauffer, and by others familiar with his work. See Snyder, 36 F.E.P. at 447. Plaintiff also relies on two letters of recommendation written by Stauffer after his termination blaming the termination on budgetary constraints. Plaintiff Exhs. 4 & 5. The Court, having examined these letters, finds they were written for the purpose of helping plaintiff obtain new employment and that they are deliberately vague as to plaintiff’s performance in the time period in question. Lastly, the fact that plaintiff submits he was unaware of his probationary status does not change the Court’s conclusion that plaintiff was not “qualified.” See Pace v. Southern Railway System, 701 F.2d 1383, 1391 n. 8 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983) (“Taking as true that appellant was unaware ... of the dissatisfaction with his performance, ... a basis of poor management and decision-making may be made out, but certainly no basis for an inference of discrimination”). Plaintiff also has not shown that he was replaced by a younger individual. Plaintiff alleges that he has met this requirement of a prima facie case because, after his" } ]

[ { "docid": "17126257", "title": "", "text": "also, Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the temporal proximity between employer’s knowledge ,of protected activity and an adverse employment action must be “very close” to be sufficient evidence of a causal connection). Courts in this District have held that a gap of even two months is too remote to infer any casual, connection. See Baker v. Potter, 294 F.Supp.2d 33, 41 (D.D.C.2003) (two-month gap between protected activity and adverse employment action insufficient to demonstrate temporal proximity to establish a casual connection); see also, Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364, 369 (D.C.Cir.2007) (Eight or nine month gap “far too long” to establish causal link); Nagpal v. Holder, 750 F.Supp.2d 20 (D.D.C.2010) (“four month gap between protected activity and the adverse employment action lacks the temporal proximity necessary to establish a casual connection” in this Circuit). Here, more than nine months\" passed between Winston’s first EEO complaint and Beehtol’s decision to suspend him. This is simply too remote to establish a casual connection between the two. What is more, contrary to Winston’s argument that the seven-day suspension was Be-chtol’s first opportunity to retaliate against him, Bechtol treated Winston favorably in the face of multiple opportunities to exercise retaliatory discretion over him between his EEO complaint and the seven-day suspension. During this time, Bechtol selected Winston to be the Building Manager in the Suitland Zone. When describing his interview for the position to Evans in an email, Bechtol explained that “[Winston] did just fine... I think the sky is the limit for him” and suggested that Evans assign him more substantive work. (PL’s Ex, 33). In addition, Bechtol signed off on a favorable performance evaluation, a cash award, and a time-off award, and she approved his request to travel to an industry conference at an expense rate above per diem. (Def.’s Exs. 29, 35-38). These intervening events greatly undermine the inference of retaliation. See, e.g., Johnson v. Auburn Univ., 403 F.Supp.2d 1101, 1114 (M.D.Ala,2005), aff'd, 193 Fed.Appx. 955 (11th Cir.2006). Considering the" }, { "docid": "14736075", "title": "", "text": "Defendant. See, e.g., Nagpal v. Holder, 750 F.Supp.2d 20, 29 (D.D.C.2010) (No genuine issue of material fact where plaintiff failed to show any connection between comments about his national origin and adverse employment actions); Sewell v. Chao, 532 F.Supp.2d 126, 139 n. 8 (D.D.C.2008) (stray remarks in the workplace unrelated to challenged employment decisions were insufficient to create a triable issue of discrimination). V. CONCLUSION For the reasons set forth above, the Court hereby DENIES Ng’s motion to strike certain declarations related to the defendant’s summary judgment motion; and GRANTS Defendant’s motion for summary judgment. SO ORDERED. . The permanent duty station for a Technical Support Manager is at FAA headquarters in Washington, D.C, (D-SOF.fl3.) . The SCI is a bonus (in the form of a higher annual pay raise) available to FAA employees who are recommended for such increase by their supervisor based o'n their superior performance. Such employees can be recommended for either SCI-1 (which includes an additional 1.8% pay raise) or SCI-2 (which includes an additional 0.6% pay raise). The recommendation of an employee’s supervisor must be approved by a second-level official, generally the employee's second-level supervisor. (D-SOF ¶ 5.) . Sandra Sanchez, Lavey's predecessor and Ng's former supervisor, testified that these comments included Braese complaining that Ng was hard to understand. (PL Br. Ex. A (Sanchez Deposition) at 134:9-18.) Sanchez also testified that Braese expressed skepticism that Ng had actually done work that was attributed to Ng. (Id. at 134:9-18.) . In order to succeed on a retaliation claim under Title VII, a plaintiff must show that retaliation was the but-for cause of the adverse employment action at issue. University of Texas Southwestern Medical Center v. Nassar, -U.S.-, 133 S.Ct. 2517, 2527-2528, 186 L.Ed.2d 503 (2013). . Even if there was merit to the contentions in Ng’s motion to strike, it would not affect the ultimate disposition of Defendant’s mo-1 tion for summary judgment, infra, as the Court does not rely on any of the purportedly \"contradictory” facts raised by Ng in ruling on the motion for summary judgment. . It is also noteworthy that Ng’s" }, { "docid": "14736074", "title": "", "text": "if one or more of the incidents constituted an adverse employment action for Title VII purposes, Defendant would still be entitled to summary judgment because Ng has also failed to show that any of the alleged adverse employment actions occurred because of his race, national origin, or as retaliation for his engaging in protected activity. Apart from maintaining that certain of Ng’s colleagues mimicked Ng’s accent and/or commented that they had a hard , time understanding him (PI. Br. at 20-22), Ng offers no. evidence of any discriminatory motivation for any of the alleged adverse actions. And while the accent-related incidents that Ng describes are troubling, Ng makes no attempt to tie them in any way to the completely separate incidents that form the basis of his claims. In sum, assuming that Ng suffered any adverse employment actions, the record is devoid of any evidence connecting the alleged adverse employment actions that Ng identifies to his race or national origin. This failure constitutes a second, independent basis upon which summary judgment must be granted for Defendant. See, e.g., Nagpal v. Holder, 750 F.Supp.2d 20, 29 (D.D.C.2010) (No genuine issue of material fact where plaintiff failed to show any connection between comments about his national origin and adverse employment actions); Sewell v. Chao, 532 F.Supp.2d 126, 139 n. 8 (D.D.C.2008) (stray remarks in the workplace unrelated to challenged employment decisions were insufficient to create a triable issue of discrimination). V. CONCLUSION For the reasons set forth above, the Court hereby DENIES Ng’s motion to strike certain declarations related to the defendant’s summary judgment motion; and GRANTS Defendant’s motion for summary judgment. SO ORDERED. . The permanent duty station for a Technical Support Manager is at FAA headquarters in Washington, D.C, (D-SOF.fl3.) . The SCI is a bonus (in the form of a higher annual pay raise) available to FAA employees who are recommended for such increase by their supervisor based o'n their superior performance. Such employees can be recommended for either SCI-1 (which includes an additional 1.8% pay raise) or SCI-2 (which includes an additional 0.6% pay raise). The recommendation of" }, { "docid": "4795223", "title": "", "text": "placed the work within the purview of a different department. With regard to the procedural flaw in the telecommuting approval process, the plaintiff argues that “[i]n reviewing [the plaintiffs] request, the process should have ended if the first line supervisor did not approve the request.” Pl.’s Stmt, of Facts, Pl.’s Add’l Facts ¶20. However, part of this departure from protocol can be explained by the fact that “Ms. [Bangs, the Associate Director of Technology,] had a personal policy against telecommuting and that all requests would go to Mr. Taub[, the Associate Director for Management].” Id. ¶ 21. Thus, challenging the propriety of this administrative error does not enhance the plaintiffs posi tion that the defendant’s asserted justification is not credible. Regarding the failure to detail the plaintiff to another assignment, the defendant explains that Mr. Felix could not find a suitable match for the plaintiff given her experience. Pl.’s Stmt, of Facts, Resp. to Def.’s Stmt, of Facts ¶ 10. As to the plaintiffs complaint about receiving an “Achieved Standards” performance review, the defendant explains that she received that rating “because, in [Mr. Strahan’s] opinion, she performed her duties in a satisfactory manner.” Def.’s Mem. at 23. And, the plaintiff has produced no evidence beyond her own subjective opinion that she performed at a higher level, and merely argues that she did not have an opportunity to tailor her performance appropriately because she was working under an outdated performance plan. Compl. ¶ 20; see Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000) (noting that the “plaintiffs perception of himself, and of his work performance, is not relevant. It is the perception of the decisionmaker which is relevant”), aff'd 298 F.3d 989 (D.C.Cir.2002). As far as the four training courses are concerned, the defendant notes that he was unable to authorize them because there was insufficient money available in the budget. Id. ¶ 23. Other than the plaintiffs bald assertions that the courses were related to her job and that there was money available in the budget, id., she has done nothing to rebut the defendant’s justification, see Barbour" }, { "docid": "20423479", "title": "", "text": "“fails to move [his] case ‘beyond summary judgment.’ ” Barnette v. Chertoff, 453 F.3d 513, 518 (D.C.Cir.2006) (quoting Stewart v. Ashcroft, 352 F.3d 422, 430 (D.C.Cir.2003)). See also Horvath v. Thompson, 329 F.Supp.2d at 7. b. “Dubious Reasons” Argument Second, Mr. Pearsall argues that “Ms. Cammarata’s [p]roffered [r]easons for [s]electing Mr. Scheider [o]ver Mr. Pearsall are [d]ubious.” Opp. at 44. Specifically, he attacks as inaccurate and mendacious Ms. Cammarata’s reliance on (1) her relatively unfavorable impression of Mr. Pearsall’s work performance; (2) her relatively unfavorable impression of Mr. Pearsall’s interview; and (3) her claim that she hired Dr. Scheider largely because she was focusing “on the research components of the Supervisory Social Science Analyst position[.]” Opp. at 48. Mr. Pearsall fails to identify any evidence from which a reasonable jury could conclude that these reasons are substantively inaccurate or dishonestly asserted. Mr. Pearsall argues that a reasonable factfinder could disbelieve Ms. Cammarata’s claim that she relied on a relatively unfavorable impression of Mr. Pearsall’s work performance because such an impression would be unreasonable. See Opp. at 45. It would be unreasonable, argues Mr. Pearsall, because (1) he received good reviews from other supervisors, and (2) he received a performance award while at COPS. Moreover, Mr. Pearsall suggests that a reasonable factfinder could conclude that Ms. Cammarata is lying about having an unfavorable impression of his work performance because she praised his work on at least one occasion. See id. at 45-46. The Court disagrees. Reviews of other supervisors do nothing to call into question the accuracy of Ms. Cammarata’s firsthand observations of Mr. Pearsall’s performance under her supervision, nor do they suggest that Ms. Cammarata is lying about her impressions of Mr. Pearsall’s work performance. Similarly, it is difficult to see how the mere fact that Mr. Pearsall once received a performance award indicates that Ms. Cammarata’s asserted views of Mr. Pearsall’s all-around performance as compared to Dr. Scheider’s all-around performance are incorrect, misleading, or both. Finally, Ms. Cammarata’s praise for Mr. Pearsall under one set of circumstances does not undermine her assertion that he did not perform well in" }, { "docid": "23299262", "title": "", "text": "needs constant supervision, is extremely forgetful and I would hesitate to be responsible for his actions. I would not recommend him or hire him for any job. I do not feel he is capable of performing even meniall [sic] tasks and also fear that he would be very susceptible to injury. Id. at 226 (emphasis added). The next and most significant document submitted was a vocational opinion from Mr. Joe W. Mann, a vocational consultant. After reviewing the reports in the record, he’ concluded that Mr. Bowen “could not return to his past relevant work or to any other type of work.” Id. at 233. It was his opinion that: While the medical evidence concerning Mr. Bowen’s orthopedic and visual impairment suggest that he has the physical functioning capacity for a wide variety of unskilled work, the psychological evidence demonstrates that he lacks the mental capacities to function successfully in a competitive, work environment. The above opinion is based upon the following considerations: 1. Mr. Bowen has been unsuccessful in the performance of simple, repetitive work as documented by his former supervisors. Their statements correlate with the findings and conclusions of Dr. Kersey’s psychological evaluation. I believe that the best predictor of future work performance is the record of past job performance. 2. There is no unskilled work which requires less attention and concentration than his past job as a janitor or messenger boy. Further, the hand-eye coordination movements in these two unskilled positions would be less exact and demanding than most unskilled jobs (e.g. assembling, machine tending, sorting). 3. Dr. Kersey’s findings that the claimant lacks the mental capacities to function in even simple, menial (unskilled) work was most persuasive. His short attention span, his inability to follow and complete instructions, his inability to meet competitive employment deadlines, his hand-eye coordination deficients were all cited by Dr. Kersey; and importantly these mental impairments were corroborated by his two former supervisors. Id. at 233. The last document submitted was a letter from Dr. Kersey in which he reemphasized: [O]ne point may be amplified: Few employers — if any — are" }, { "docid": "4795224", "title": "", "text": "that she received that rating “because, in [Mr. Strahan’s] opinion, she performed her duties in a satisfactory manner.” Def.’s Mem. at 23. And, the plaintiff has produced no evidence beyond her own subjective opinion that she performed at a higher level, and merely argues that she did not have an opportunity to tailor her performance appropriately because she was working under an outdated performance plan. Compl. ¶ 20; see Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000) (noting that the “plaintiffs perception of himself, and of his work performance, is not relevant. It is the perception of the decisionmaker which is relevant”), aff'd 298 F.3d 989 (D.C.Cir.2002). As far as the four training courses are concerned, the defendant notes that he was unable to authorize them because there was insufficient money available in the budget. Id. ¶ 23. Other than the plaintiffs bald assertions that the courses were related to her job and that there was money available in the budget, id., she has done nothing to rebut the defendant’s justification, see Barbour v. Broumer, 181 F.3d 1342, 1347 (D.C.Cir.1999) (dismissing a plaintiffs claim because she presented “nothing to buttress her evidence of pretext”). Finally, the defendant reasons that the plaintiffs request for advanced sick leave could not be granted because she “did not provide evidence that she had a serious or incapacitating disability.” Pl.’s Stmt, of Facts, Resp. to Def.’s Stmt, of Facts ¶ 48. Requiring such proof is not unreasonable, and as the defendant aptly notes, approval of the plaintiffs request is necessary to ensure that advanced sick leave is not approved too frequently, and the plaintiffs alternative request to take leave without pay was denied in the “discretion of management” because approving such a request “would undermine a supervisor’s ability to prevent unexcused absences from work.” Defs Mem. at 6. The defendant has, therefore, articulated non-discriminatory reasons for each of the actions challenged by the plaintiff, and given the lack of any evidence undermining these reasons, no reasonable jury could find that the defendant acted with a. discriminatory or retaliatory motive as to any of" }, { "docid": "4689514", "title": "", "text": "inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual.” Id. 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. Whether the proffered non-discriminatory reason is pretextual may turn on the jury’s judgment as to the credibility of the witnesses “because almost every worker has some deficiency on which the employer can plausibly blame the worker’s troubles.” Hunter, supra, 797 F.2d at 1423. The defendant argues that Mr. McKnight was fired because he did not meet the employer’s legitimate job performance expectations. G.M. presented the testimony of numerous management personnel who held supervisory responsibil ities over the plaintiff, along with the results of various personnel appraisals that evaluated the plaintiff in a negative manner. G.M. argues that the volume of this evidence was “overwhelming” and that Mr. McKnight did not provide a scintilla of evidence to prove that the allegations of employment performance deficiencies were pretextual. On the contrary, I find that the jury was presented with substantial evidence, which, if believed, would show that the defendant’s proffered explanation of poor job performance was pretextual. First, the jury received the testimony of the plaintiff’s expert on personnel practices. Dr. Dresang opined that the subjectivity of G.M.’s employee appraisal system is such that it does not provide reliable evidence of poor performance. Second, the motives of a number of the defendant’s witnesses who had supervisory responsibility for the plaintiff were effectively impeached. Some examples: one of the plaintiff’s supervisors told racial jokes, using the word “nigger;” one of the plaintiff’s supervisors was coerced into reducing an evaluation of Mr. McKnight’s work performance; a former manufacturing superintendent provided an affidavit to the effect that the plaintiff’s immediate supervisor wanted to terminate the plaintiff’s employment for reasons unrelated to his job performance; and several black employees testified that they were concerned about how black employees were treated by Mr. MeKnight’s immediate supervisor. Third, assuming the validity of the defendant’s negative appraisal of the plaintiff’s job performance, there was evidence that the plaintiff was treated differently than others with" }, { "docid": "2928194", "title": "", "text": "conferred with the senior civilian analyst, Dr. Romance, who brought her case to the attention of Doe and Dowdy’s superior, Captain Martinez. Martinez appointed Joseph Geibel to conduct an investigation into the validity of McKenna’s performance appraisal and the fairness of the counseling session. Geibel was also asked to ascertain “whether there was any sexist bias in the failure to forward promotion papers and in her treatment in her work environment.” The Geibel investigation proceeded simultaneously with Doe and Dowdy’s movements to terminate Ms. McKenna’s employment. During the same week that Ms. McKenna spoke to Martinez, Dowdy held a session with the coworkers which convinced him of their good faith and reliability. A few days later he met again with Ms. McKenna, who reiterated her view that the complaints were baseless and did not warrant discussion. Shortly after this second meeting, Dowdy met with his supervisor, Dr. Collins, who suggested that Ms. McKenna’s prior supervisors be canvassed for statements evaluating her performance. On August 7 or 8, Geibel began to interview the concerned parties, including Doe, informing them that Ms. McKenna’s complaint was based on allegations of sexist treatment. On August 7th as well, Ms. Miner, a prior supervisor, submitted her written statement solicited by Dowdy. On August 10th, Doe told Ms. McKenna that he was not forwarding her promotion, stating that he needed more time to observe her in view of her performance deficiencies and the ongoing investigation. Doe testified that he had not yet at this point decided to recommend termination, although he well knew that he had only a few days for further observation. On August 11, another prior supervisor, Ms. Miller, submitted her statement. On August 14, Doe executed the memorandum recommending termination based on Ms. McKenna’s inability to cooperate with her colleagues and her unwillingness to attempt to ameliorate the situation. Dowdy, who had received similar reports of abrasiveness from each of Ms. McKenna’s other supervisors, concurred in the recommendation. Dr. Collins then forwarded the recommendation to the Acting Chief of Staff, Admiral Walsh. Ms. McKenna received notice on August 16 that she would be" }, { "docid": "18273083", "title": "", "text": "or environmental problems somewhere down in the lab ... and he had not informed his immediate supervisor of those problems.” Lieutenant Colonel Stansbury, the Chemical Test Division Chief and Dr. Hall’s second-line supervisor, testified that his understanding of Lieutenant Colonel Kiskowski's instruction was, \"Give the chain of command the opportunity to correct any kind of deficiencies or answer any kind of concerns you may have, and if you're not satisfied, then exercise your authority” to report to outside agencies. Mr. Steelman, when asked if he recalled Dr. Hall being instructed not to communicate with federal or state agencies, said, \"I don’t believe that’s correct. I believe his instructions were not to contact them before he contacted his internal Dugway chain of command.” . Dr. Hall also claims that Army Commander Colonel John Como decided to revoke Dr. Hall's security clearance based on a packet of information that included Dr. Hall's whistle-blower complaint. He argues this is direct evidence of retaliation. As explained supra, per Egan, neither the Board, nor this Court has authority to review this action or the motives surrounding it. . Similarly, Dugway's actions in rating Dr. Hall as fully successful in his performance evaluations in 1992 and 1995 but telling a psychiatrist that examined Dr. Hall on October 1, 1996 that he was experiencing unsatisfactory performance is not reviewable evidence of retaliatory motive. The psychiatric evaluation was part of the DIS's reinvestigation of Dr. Hall’s security clearance and, per Egan, the Board cannot examine the legitimacy of Dugway's concerns in evaluating his clearance. For the same reason, we reject Dr. Hall’s contention that Dugway raised old allegations of sexual harassment in an attempt to influence the outcome of Dr. Hall's security clearance review. . During Dr. Hall’s opening statement before the ALJ, his counsel asserted that Dr. Hall \"basically became convinced that the Army's intent at this point ... was to either terminate his employment ... or to remove his security clearance,” so Dr. Hall terminated his employment to \"mitigate the damage he was absolutely certain was about to occur, which was his termination and the removal" }, { "docid": "23355105", "title": "", "text": "he was not meeting its legitimate expectations: Dr. Hannah reviewed both Dean Wiener’s recommendation for reappointment and Dr. Utesch’s recommendation for non-reappointment, and decided that the accusations about the Defendant’s inappropriate behavior outweighed the positive aspects of his employment. In response, the Plaintiff offers a two-paragraph rebuttal insisting that the Defendant’s stated reasons have no basis in fact. He maintains that the allegations against him were unverifiable and unsubstantiated, and that the Court can infer from the falsity of the Defendant’s explanation that it is dissembling its discriminatory purpose. The Court disagrees. The Plaintiff has failed to present enough evidence to cast the shadow of pretext on the Defendant’s explanation why he was not reappointed. It is not sufficient for the Plaintiff to show that some or all of the students’ allegations about the Plaintiffs inappropriate behavior were made up by those students. It is also insufficient for the Plaintiff to show that previous recommendations from Dr. Utesch praised his abilities and zeal for teaching, and that some faculty members, as well as many students, perceived him as an excellent teacher. Cf. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.2002) (“In most cases, when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but ‘whether the employee was performing well at the time of [his] termination.’ ” (citation omitted)); Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1460 (7th Cir.1994) (“Our cases also give little weight to statements by supervisors or eo-workers that generally corroborate a plaintiffs own perception of satisfactory job performance.”). Rather, he must show that Dr. Hannah, the person who made the ultimate decision not to reappoint the Plaintiff, or Dr. Utesch who passed the complaints on to her, made up the students’ allegations, did not truly believe them, or found them insignificant. In a word, the Plaintiff must establish that Dr. Hannah’s and Dr. Utesch’s reasons for the Plaintiffs non-reappointment were merely made up to cover up their discriminatory reasons. Yet, the evidence points" }, { "docid": "17126256", "title": "", "text": "same position that he was in before the suspension. There is no evidence that his duties, responsibilities, pay grade, or chances of promotion changed as a result of the suspension. What is more, the Smithsonian alleges that Winston was paid during the suspension, an allegation that Winston does not dispute. (See Mot. at 5 noting that Winston continued drawing a salary from the U.S. Treasury because he performed Air National Guard duties during the suspension). Paid suspension alone is not enough to rise to the level of materially adverse unless it causes some further harm or hardship. Hunter, 905 F.Supp.2d at 378. Nevertheless, even if this Court were to find that the seven-day suspension constituted a materially adverse action, Winston cannot establish a causal link between his 2006 EEO activity and his 2007 suspension. An employee may establish a causal connection “by showing that the employer had knowledge of the employee’s protected activity, and that the [retaliatory] action took place shortly after that activity.” Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985) (emphasis added); see also, Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the temporal proximity between employer’s knowledge ,of protected activity and an adverse employment action must be “very close” to be sufficient evidence of a causal connection). Courts in this District have held that a gap of even two months is too remote to infer any casual, connection. See Baker v. Potter, 294 F.Supp.2d 33, 41 (D.D.C.2003) (two-month gap between protected activity and adverse employment action insufficient to demonstrate temporal proximity to establish a casual connection); see also, Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364, 369 (D.C.Cir.2007) (Eight or nine month gap “far too long” to establish causal link); Nagpal v. Holder, 750 F.Supp.2d 20 (D.D.C.2010) (“four month gap between protected activity and the adverse employment action lacks the temporal proximity necessary to establish a casual connection” in this Circuit). Here, more than nine months\" passed between Winston’s first EEO complaint and Beehtol’s decision to suspend him. This is simply" }, { "docid": "23299263", "title": "", "text": "work as documented by his former supervisors. Their statements correlate with the findings and conclusions of Dr. Kersey’s psychological evaluation. I believe that the best predictor of future work performance is the record of past job performance. 2. There is no unskilled work which requires less attention and concentration than his past job as a janitor or messenger boy. Further, the hand-eye coordination movements in these two unskilled positions would be less exact and demanding than most unskilled jobs (e.g. assembling, machine tending, sorting). 3. Dr. Kersey’s findings that the claimant lacks the mental capacities to function in even simple, menial (unskilled) work was most persuasive. His short attention span, his inability to follow and complete instructions, his inability to meet competitive employment deadlines, his hand-eye coordination deficients were all cited by Dr. Kersey; and importantly these mental impairments were corroborated by his two former supervisors. Id. at 233. The last document submitted was a letter from Dr. Kersey in which he reemphasized: [O]ne point may be amplified: Few employers — if any — are willing to provide the constant and immediate supervision that would be required for Mr. Bowen to adequately perform substantial gainful employment. It continues to be my professional opinion that Mr. Bowen does not have adequate capabilities to give or take instructions; to meet deadlines; and to perform other perceptual/organizational demands sufficient to be acceptable to the average work environment. Id. at 235. The Appeals Council considered all of these documents. However, in denying Mr. Bowen’s request for review it indicated that: (1) Mr. Veaudry’s statement was not material to the issue of his capacity to work as it applied only to his performance on past jobs; (2) the vocational report was immaterial because, among other things, it equated his past job performance with his current capabilities; and (3) Dr. Kersey’s report did not contain information that was not considered by the administrative law judge. Neither the Appeals Council nor the district court discussed whether Mr. Bowen’s psychological and physical impairments, when considered in combination, would cause Mr. Bowen to be disabled within the meaning of" }, { "docid": "23032151", "title": "", "text": "seems to have a definite deficit in color perception. To evaluate the extent of his color blindness and the axis that is most affected, I suggest that more elaborate color vision testing be performed. Dr. Chung restricted Shannon from driving pending the more elaborate tests recommended by Dr. Nadel. On June 4 and July 21, Shannon was examined by Dr. Sheila Margolis, another ophthalmologist, who administered another Ishihara test. This time, Shannon correctly identified two out of nine color plates. Dr. Margolis also administered a Electro-retinogram (“ERG”) test, which checks cellular elements of the retina — called rods and cones — that can affect color vision. Dr. Margolis concluded that Shannon might have dysfunction in his rods and cones, and so reported to Dr. Nadel, who passed this diagnosis on to Dr. Chung on August 5, stating that “[i]n view of this finding with the associated color deficiency, it [was] advisable that Mr. Shannon be restricted from driving.” After some additional testing, Dr. Nadel wrote to Dr. Chung on August 30: “I cannot make any other recommendation regarding Mr. Shannon’s case.” On September 19, 1999, Dr. Chung reviewed with Shannon the opinions of Drs. Nadel and Margolis, and told Shannon that he could no longer drive a NYCTA bus. The next day, she recorded her final assessment: “color blindness with rod-cone disorder.” Between the initial driving restriction in mid-June and the permanent one on September 19, Shannon had been working for NYCTA in the non-driving position of “cleaner.” However, no permanent position as a cleaner was available: 6,000 applicants were on the waiting list. After the September 19 meeting with Dr. Chung, Shannon met with his supervisor and a union representative, told them Dr. Chung’s conclusion, and (though Shannon suggests that he “probably” discussed reassignment) Shannon’s supervisor told him to resign or be terminated. Shannon resigned. After resigning, Shannon filed a charge of disability discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a Notice of Right to Sue, and Shannon filed this suit. Following discovery, the parties filed cross motions for summary judgment, and the district court" }, { "docid": "10710972", "title": "", "text": "direct evidence, including statistical evidence or ageist remarks, that suggest that defendant’s decision to fire her was based on age. Instead plaintiff argues that defendant’s proferred reason was a pretext for age discrimination. She first asserts that Merrill’s two performance evaluations, which rated her performance as unsatisfactory, were inaccurate. Plaintiff points out that prior supervisors over an eight-year period each rated her job performance as satisfactory. But a change in management’s evaluation of an employee’s performance does not by itself raise an inference of pretext. See Viola v. Philips Medical Systems of North America, 42 F.3d 712, 717-718 (2d Cir.1994) (rejecting inference of discrimination or pretext from negative performance review after prior reviews were positive). “[SJuch an inference is even less permissible when a new supervisor is appointed, who is entitled to set his own standards and agenda.” Brown v. Time, Inc., 1997 WL 231143 (S.D.N.Y. May 7, 1997). Further, although plaintiff’s previous evaluations were satisfactory, the point totals (with one exception) were toward the low end of the satisfactory category. Plaintiffs prior supervisors had noted deficiencies in plaintiffs work and the fact that her performance over the years had deteriorated is reflected in negative remarks and lower point totals even before Merrill assumed supervisory responsibility for plaintiff. Plaintiff also relies heavily upon the fact that the internal review panel significantly raised her point score after reviewing Merrill’s last evaluation. Even with that adjustment, however, the panel still rated plaintiffs performance as unsatisfactory. Despite plaintiffs assertion that her performance was satisfactory, “[i]t is the manager’s perception of the employee’s performance that is relevant, not plaintiffs subjective evaluation of [her] own relative performance.” Furr v. Seagate Technology, Inc., 82 F.3d 980, 987 (10th Cir.1996) (granting JMOL in favor of defendant because ADEA plaintiff failed to show reduction in force was pretextual); see also Fallis v. Kerr-McGee Corp., 944 F.2d 743, 747 (10th Cir.1991)(“plaintiffs general dispute concerning [] job performance, in the absence of any other evidence of age discrimination, does not provide a sufficient basis for a jury to infer that [defendant] terminated plaintiff on the basis of [ ] age.”)." }, { "docid": "18273082", "title": "", "text": "statutes. . On appeal, Dr. Hall does not separately press a claim for being subjected to a hostile work environment. He alleges only that because of the hostility at Dugway, he was constructively discharged. Because we affirm the Board's determination that Dr. Hall failed to establish that the alleged hostility was connected to his protected activity, any hostile work environment claim Dr. Hall could have pressed would likewise fail. . Once a plaintiff established that retaliation played a motivating part in the defendant’s actions against him, it becomes the defendant’s burden to prove by a preponderance of the evidence that \"it would have made the same decision notwithstanding its retaliatory motive.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir.1999) (quotation omitted); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). . Lieutenant Colonel Kiskowski testified that although he acknowledged that Dr. Hall had a \"constitutional right” to report concerns to whomever he wanted, \"[w]hat I was concerned about is that there were potential safety or environmental problems somewhere down in the lab ... and he had not informed his immediate supervisor of those problems.” Lieutenant Colonel Stansbury, the Chemical Test Division Chief and Dr. Hall’s second-line supervisor, testified that his understanding of Lieutenant Colonel Kiskowski's instruction was, \"Give the chain of command the opportunity to correct any kind of deficiencies or answer any kind of concerns you may have, and if you're not satisfied, then exercise your authority” to report to outside agencies. Mr. Steelman, when asked if he recalled Dr. Hall being instructed not to communicate with federal or state agencies, said, \"I don’t believe that’s correct. I believe his instructions were not to contact them before he contacted his internal Dugway chain of command.” . Dr. Hall also claims that Army Commander Colonel John Como decided to revoke Dr. Hall's security clearance based on a packet of information that included Dr. Hall's whistle-blower complaint. He argues this is direct evidence of retaliation. As explained supra, per Egan, neither the Board, nor this Court has authority to review" }, { "docid": "9853501", "title": "", "text": "counsel, however, investigated the possibility of an insanity defense and made a tactical choice to reserve the doctor’s testimony until the punishment phase. See Williams v. Cain, 125 F.3d 269, 278 (5th Cir.1997) (“failure to present ... evidence would not constitute ‘deficient’ performance within the meaning of Strickland if ... [counsel] could have concluded, for tactical reasons, that attempting to present such evidence would be unwise.”). Even if we were not applying the deferential Strickland standard, we would have to find Wheat’s counsel’s choice was arguably a sound one. By reserving Dr. Mills’ testimony for the punishment phase, Wheat’s counsel benefitted from the discovery rules in effect for the trial that did not require disclosure of plans to produce psychiatric testimony in the punishment phase. Counsel thus spared Dr. Mills’ testimony the impeachment that would have been likely at the guilt-or-innocence phase. As trial counsel testified at the district court evidentiary hearing, Dr. Mills himself told them that the insanity defense was not a viable one. The doctor also testified that the opinions he presented at the punishment phase were based primarily on Wheat’s own testimony about his delusions, and only secondarily on the brain damage evidence. Wheat’s supervisor at work testified in the punishment phase that Wheat’s exposure to toluene had been minimal. Additionally, a licensed psychologist determined that Wheat was competent to stand trial, that his abnormal mental condition did not grossly and demonstrably impair his perception of reality, and that there was no indication of a severe mental illness or emotional disturbance that would preclude his ability to understand right and wrong. If Dr. Mills had testified at the guilt-or-innocence phase, the record indicates that his testimony would have been impeached. We accordingly find no deficient performance; the decision to reserve the insanity evidence as mitigating evidence during the punishment phase was a reasonable tactical choice, well above the Strickland standard. VI For the foregoing reasons, Wheat’s request for a certificate of appealability is DENIED." }, { "docid": "23355106", "title": "", "text": "perceived him as an excellent teacher. Cf. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.2002) (“In most cases, when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but ‘whether the employee was performing well at the time of [his] termination.’ ” (citation omitted)); Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1460 (7th Cir.1994) (“Our cases also give little weight to statements by supervisors or eo-workers that generally corroborate a plaintiffs own perception of satisfactory job performance.”). Rather, he must show that Dr. Hannah, the person who made the ultimate decision not to reappoint the Plaintiff, or Dr. Utesch who passed the complaints on to her, made up the students’ allegations, did not truly believe them, or found them insignificant. In a word, the Plaintiff must establish that Dr. Hannah’s and Dr. Utesch’s reasons for the Plaintiffs non-reappointment were merely made up to cover up their discriminatory reasons. Yet, the evidence points to the contrary. Even Dean Wiener’s recommendation for reappointment was not without some hesitation. She recognized some of the Plaintiffs flaws but believed that his research skills, publications, and his verbal commitment for improvement outweighed them. She was also confident that the Plaintiff was going to correct his interactions with the students during the coming months. Dr. Utesch, on the other hand, noted that the student complaints had become more serious over the past year, compromising all positive aspects of the Plaintiffs work: “female students report inappropriate comments about their appearance,” and “[t]he trust and respect of students has been diminished by misuse of power.” (Hannah Dep., Ex. 15.) Dr. Hannan, faced with contradicting recommendations from her subordinates, met with Dean Wiener and Dr. Utesch to discuss their recommendations and reviewed all available documents. She even made sure that Dr. Utesch consulted with Judy Dilorio, IPFW’s Affirmative Action Officer and James Ferguson, IPFW’s Human Resources Services Director, to insure that all procedures were followed. Then, after considering both sides, she decided against the Plaintiffs reappointment," }, { "docid": "23452826", "title": "", "text": "qualifications for its Senior Managing Director for Sport Resources might have been. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 (10th Cir.2000) (to establish a prima facie case, a plaintiff must “show[ ] she is qualified by presenting some credible evidence that she possesses the objective qualifications necessary to perform the job at issue”). Plaintiffs bare assertion that “[t]here was no objective criteria for the qualifications of this position other than the perceptions of the individuals who had been discriminating against [him]” is clearly not sufficient to survive summary judgment absent any record support. Furthermore, the USOC has produced a nondiscriminatory justification for hiring Blackmun rather than Plaintiff, and Plaintiff has not pointed to any record evidence suggesting that this justification was pretextual. Norman Blake, then-CEO of the USOC, declared that he selected Blackmun for this position because Black-mun “had, in effect, been acting as the Chief Executive Officer of USOC before my appointment and had won the respect of the USOC management and the NGBs [National Governing Bodies].” Blake further stated that he did not appoint Plaintiff to that position because he, unlike Blackmun, did not have credibility with the NGBs. Blake added that “I was aware that the consensus of Dr. Exum’s supervisors was that he lacked strong leadership skills and was not an effective manager. My own experience with Dr. Exum confirmed this assessment.” To show pretext, the plaintiff must call into question the honesty or good faith of the USOC’s assessment of his abilities. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). It is not enough that a factfinder could disagree with the employer’s assessments. “The relevant inquiry is not whether [the defendant’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.” Id.; see also Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir.1997) (“[A plaintiff] cannot avoid summary judgment with" }, { "docid": "23235076", "title": "", "text": "three ways: (1) with evidence that the defendant’s stated reason for the adverse employment action was false ...; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances ...; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff. Kendrick, 220 F.3d at 1230 (citations and quotations omitted) (emphasis added). The plaintiffs evidence can also allow for an inference that the “employer’s proffered non-discriminatory reasons [were] either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). Dr. Plotke makes several arguments in support of her claim that the Army’s justification for her discharge is pretextual. First, she contends the reasons for her termination other than the TDY incident were pretextual, post-hoc justifications. In support of this contention, Dr. Plotke offers evidence that before the TDY incident, neither Dr. Morris nor anyone on his behalf had formally counseled her on any performance deficiencies or misconduct issues. Dr. Plotke also points to the fact that neither Dr. Morris nor Dr. Lackey raised any other reason besides the TDY incident for relieving Dr. Plotke of her position to Col. Ohl, the ultimate decision-maker regarding termination. Moreover, Dr. Morris admitted as of June 20 (prior to the TDY episode) that both he and Dr. Lackey would have recommended Dr. Plotke be retained in permanent employment beyond her probationary period. Dr. Morris did not consult Dr. Gorell for his input on retaining Dr. Plotke in July, despite the fact that Dr. Gorell was her immediate supervisor from January through May 1995, and Dr. Morris conceded he believed that Dr. Gorell would have recommended Dr. Plotke’s employment be extended. Dr. Morris subsequently enhanced his reasons for terminating Dr. Plotke by referencing additional pre-June 20 incidents to support his decision, as detailed in the June 27 memo he prepared for Dr. Plotke regarding her" } ]

[ { "docid": "6441735", "title": "", "text": "that if NFPA or UL refused to approve a product, the government entities relying on NFPA and UL would necessarily also refuse to approve such products. Finally, as a practical matter it would be virtually impossible for WP to lobby the individual municipalities and states regarding the adoption of particular specifications or requirements for IMC. These governmental bodies have placed total trust and reliance on NFPA and UL. In order to influence effectively the governmental entities, WP had no option but to lobby NFPA and UL. Allied poses three arguments in an attempt to show that the Noerr-Pennington doctrine should not be applied on the facts of this case. First, it cites Kurek v. Pleasure Driveway and Park District of Peoria, 557 F.2d 580 (7th Cir.1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), reconsidered and reinstated, 583 F.2d 378 (7th Cir.1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). Kurek stands for the proposition that the Noerr-Pennington doctrine does not apply where the governmental body acted “as a commercial entity.” 557 F.2d 580, 592 at n. 10 (action under the Sherman Act would lie where defendant Park District demanded in- - creased revenues from golf course concessionaires). Kurek is quite a different case from the one posed here, since the governmental entities involved are not claimed to have acted as commercial entities, but instead adopted product standards and specifications. Second, Allied argues that “the Noerr-Pennington doctrine does not shield from the antitrust laws concerted efforts to influence decisions of government regarding the adoption of mere specifications. Such activities are not a crucial part of the political process inherent in genuine efforts to influence significant policy decisions by the legislative or executive branches of government.” (Memorandum of Allied in Opposition to WP’s Motion for Summary Judgment, at 37-38; emphasis in original). This “political process” argument seems to be based on the theory that the First Amendment berth given the Sherman Act by the Supreme Court in the Noerr and Pennington cases relates only to questions of electoral politics. This is not" } ]

[ { "docid": "824219", "title": "", "text": "v. Chauffeurs Loc. 150, 440 F.2d 1096 (9th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). In Whitten the parties were manufacturers of prefabricated “pipeless” pool gutters who sought to sell their products to public bodies acting under competitive bidding procedures mandated by state law. Plaintiff alleged that Paddock and its various dealers and representatives had violated Section 1 of the Sherman Act by conspiring to require the use of Paddock’s own specifications in the public swimming pool industry with the intent to exclude others from bidding. Plaintiff also charged Paddock with making misrepresentations about Whitten and threats of litigation and harassment directed at Whitten and its customers. 424 F.2d at 27. Paddock moved for summary judgment, conceding for pur poses of the motion that it had combined with others to effect the adoption of its specifications in the industry, that its specifications were drawn so that only it could comply, and that its purpose was to eliminate competition. The trial court, citing Noerr, held that all efforts to induee governmental bodies to take action, regardless of their motives, were immune from antitrust liability. The court of appeals reversed. The opinion contains a lengthy discussion of Noerr and Pennington and concludes that immunity . . . does not extend to efforts to sell products to public officials acting under competitive bidding statutes. 424 F.2d at 33. For the following reasons Whitten is not authority for applying a commercial activity exception in this case: First, the court’s holding was limited to efforts to influence officials acting under competitive bidding statutes. By its terms, it does not apply to a case such as that before the Court in which the authority of the officials to restrict competition is uninhibited by the terms of the organic statutes. Second, the case was decided prior to California Motor Transport, supra, in which the Court expressly acknowledged that the protection accorded joint advocacy was not limited to political or policy matters but extended to “business and economic interests.” Whitten fails to address the question why protection given to joint advocacy of" }, { "docid": "193237", "title": "", "text": "Circuit's rejection of a commercial exception in In re Airport Car Rental Antitrust Litigation undermines Santana's reliance upon that court's earlier decision in Sacramento Coca-Cola Bottling Co. v. International Brotherhood of Teamsters, 440 F.2d 1096 (9th Cir.1971). . None of the cases Santana cites for the proposition that commercial speech may be regulated-Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978); and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)—involved any petitioning activity. Commercial speech in the petitioning context adds an additional First Amendment concern not addressed by the case law cited by Santana. Indeed, Santana's argument appears to be a roundabout way of finding a commercial exception to the Noerr/Pennington doctrine. As noted above, courts have already held that misrepresentations by the petitioner do not vitiate Noerr immunity. Santana wants to except from this principle commercial speech. But if unethical and deceitful conduct does not eliminate Noerr immunity, even where the aim is to restrain competition, so too deceptive and misleading commercial speech directed at government actors should not undermine the protection otherwise afforded First Amendment petitioning activity, at least in the absence of a clear congressional directive to the contrary. To hold otherwise would create too large a loophole in Noerr immunity as many of the petitions aimed at government could be characterized as involving commercial speech. . Co-defendants Hornyak and Vogel also moved for summary judgment on the basis of the Noerr/Pennington doctrine. Both Horn-yak and Vogel presented evidence that their sales activity were directed exclusively at public entities. Santana did not dispute this characterization of the evidence. Indeed, Santana’s opposition brief does not address the applicability of the Noerr/Pennington doctrine to the alleged actions of Hornyak and Vogel. Accordingly, Hornyak and Vogel are entitled to entry of judgment in their favor on all claims solely on the basis of the Noerr/Pen-nington defense. I will also address," }, { "docid": "824218", "title": "", "text": "These issues are discussed in the following sections of this opinion. A. The so-called Commercial Activity Exception to the Noerr-Pennington Doctrine For purposes of this discussion, the Court assumes that the foundation for the so-called Noerr-Pennington doctrine rests on the First Amendment although, as heretofore observed, the First Amendment analysis appears to be superfluous to the determination that joint action which imposes no restraint does not fall within the Sherman Act. The First Amendment analysis led the court in the prior ruling to apply a purported exception to the Noerr-Pennington doctrine for so-called commercial activity, i. e., joint action to influence government officials engaged in commercial or proprietary functions. The authority for such an “exception” was said to derive primarily from three decisions: George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970); Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C.Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); and Sacramento Coca-Cola Bottling Co. v. Chauffeurs Loc. 150, 440 F.2d 1096 (9th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). In Whitten the parties were manufacturers of prefabricated “pipeless” pool gutters who sought to sell their products to public bodies acting under competitive bidding procedures mandated by state law. Plaintiff alleged that Paddock and its various dealers and representatives had violated Section 1 of the Sherman Act by conspiring to require the use of Paddock’s own specifications in the public swimming pool industry with the intent to exclude others from bidding. Plaintiff also charged Paddock with making misrepresentations about Whitten and threats of litigation and harassment directed at Whitten and its customers. 424 F.2d at 27. Paddock moved for summary judgment, conceding for pur poses of the motion that it had combined with others to effect the adoption of its specifications in the industry, that its specifications were drawn so that only it could comply, and that its purpose was to eliminate competition. The trial court, citing Noerr, held that all efforts to induee" }, { "docid": "14419335", "title": "", "text": "had been corrupted by the defendants’ conduct. See id. at 29; see also Richard Hoffman Corp., 581 F.Supp. at 374 (finding that plaintiff adequately alleged anticompetitive conduct where private firm had prepared bid specifications and written in its own product, thereby denying the public agency independent judgment in its choice of product). Second, Whitten has not withstood the test of time. Later cases expressly reject the idea of a commercial exception to Noerr-Pennington. See A Fisherman’s Best, Inc. v. Recreational Fishing Alliance, 310 F.3d 183, 194 (4th Cir.2002); Greenwood Utilities Comm’n v. Miss. Power Co., 751 F.2d 1484, 1505 (5th Cir. 1985) (refusing to recognize a commercial exception to Noerr-Pennington immunity, since it is difficult to determine when a government is acting in a regulatory capacity as opposed to engaging in purely commercial conduct); In re Airport Car Rental Antitrust Litig., 693 F.2d 84, 87 (9th Cir.1982); Santana Prods. Inc. v. Bobrick Washroom Equip., Inc., 249 F.Supp.2d 463, 487-91 (M.D.Pa.2003) (expressly holding, under facts similar to those here, that “[t]here is no ‘commercial’ exception to Noerr!Pennington immunity” and that the proper inquiry is whether the anticompetitive injury was caused by government action or by the private defendant), rev’d on other grounds, 401 F.3d 123 (3d Cir.2005); Sea Air Shuttle Corp. v. V.I. Port Auth., 782 F.Supp. 1070, 1076 (D.Vi. 1991); Bright v. Ogden City, 635 F.Supp. 31, 35 (D.Utah 1985) (same). In fact, some courts go so far as to suggest that Whitten is no longer good law. See, e.g., In re Airport Car Rental Antitrust Litig., 693 F.2d at 87 (“It is possible that California Motor Transport implicitly overruled ... Whitten.”), cert. denied, 462 U.S. 1133, 103 S.Ct. 3114, 77 L.Ed.2d 1368 (1983); BusTop Shelters, 521 F.Supp. at 996 (‘Whitten ... ha[s] been disapproved in this circuit, as implicitly overruled or weakened by California Motor Transport.”) (citing to Reaemco, Inc. v. Allegheny Airlines, 496 F.Supp. 546, 556 n. 6 (S.D.N.Y.1980)). The courts of this District have unanimously held that Noerr-Pennington immunity protects all lobbying and solicitation of public entities, including lobbying for commercial gain, as long as the defendants’" }, { "docid": "14481624", "title": "", "text": "Noerr-Pennington doctrine. The guiding principle behind the Noerr-Pennington immunity is to insure “uninhibited access to government policy makers.” George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 32 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970). Initially the doctrine was applied to efforts to influence legislative and executive action. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (publicity campaign by railroad companies designed to obtain legislation adverse to trucking industry); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (joint effort by employers and union to influence public officials even though intended to eliminate competition). It is now clear, however, that Noerr-Pennington immunity extends to attempts to influence judicial and administrative actions since the “right to petition extends to all departments of the Government.” California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972). See generally Fishel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U.Chi.L.Rev. 80, 96-104 (1977). Bell contends that under Noerr-Pennington antitrust liability cannot be imposed for actions taken to bring important questions before governmental authorities for resolution. Thus Bell asserts that its refusal to interconnect is protected since refusal was a necessary first step in bringing the dispute before the FCC. The crux of the Noerr-Pennington immunity is the need to protect efforts directed to governmental officials for the purpose of seeking redress. The doctrine has been applied only to situations involving direct actions made to influence governmental decisionmaking. See, e. g., Noerr, supra (publicity campaign designed to influence passage of state laws); California Motor, supra (instituting state and federal proceedings to defeat award of operating rights); Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board, 542 F.2d 1076 (9th Cir. 1976) (direct lobbying efforts opposing building permit grants before zoning board), cert. denied, 430 U.S. 940, 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977); Metro Cable Co. v. CATV" }, { "docid": "193073", "title": "", "text": "intended to eliminate competition.” 381 U.S. at 670, 85 S.Ct. 1585. The fact that the conduct in question was aimed at TVA’s purchasing policies did not enter into the analysis. Santana nonetheless persists that there is a “long line of cases that hold ... that the Noerr doctrine does not immunize eon- certed action by sellers against the government when the government is acting in a commercial capacity as a buyer of goods or services.” (Rev. Mem. in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 27.) Santana’s citations to this purported “long line” of decisional law begins with a 1970 First Circuit ruling, George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970), and ends with a 1979 decision from the District of Columbia, General Aircraft Corp. v. Air America, Inc., 482 F.Supp. 3 (D.D.C.1979). The first case cited by Santana, Whitten, was decided in the context of a summary judgment motion in which the defendant conceded for purposes of presenting a Noerr/Pennington defense “that it had combined with dealers and others to effect the use of its specifications in the public swimming pool industry, that its specifications were so drawn that only it could comply, and that its purpose was to eliminate competition.” 424 F.2d at 27. As described by the appellate court, the applicability of the Noerr/Pennington immunity was to be decided in the context of the: government acting in a proprietary capacity, purchasing goods and services to satisfy its own needs within a framework of competitive bidding, where the initial responsibility for recommending specifications has been entrusted to a hired professional, and where the selling effort directed at that professional and his public client by a leading supplier was monopolistically motivated and ran the gamut from high pressure salesmanship to fraudulent statements and threats. Id. at 29. The First Circuit rejected the defense contention that liability could not be imposed because state actors decided the content of bid specifications, reasoning that “valid government action confers antitrust immunity only" }, { "docid": "824269", "title": "", "text": "as this where the distinction is applied for the purpose of determining the antitrust liability not of the agency engaged in the activity but of third parties merely attempting to influence that agency. . The difficulties created by this analysis are reflected in the prior ruling. Compare In re Airport Car Rental, supra, 474 F.Supp. at 1090 n.16: “[Ajlthough the private parties may have been influencing ‘commercial’ activity of the state, they would probably escape liability as well ....” with id. at 1093 n.20: “This Court’s earlier discussion of the interrelationship of Parker and Noerr should not be read as a holding that all attempts to influence government officials are immune under Noerr so long as the government action itself would be immune under Parker.” . This is the necessary inference from the decisions cited in the prior ruling. In re Airport Car Rental, supra, 474 F.Supp. at 1090. In Duke & Company, Inc. v. Foerster, 521 F.2d 1277, 1282 (3rd Cir. 1975), plaintiff alleged that the private companies and the public agencies and officials had entered into a conspiracy in violation of Section 1. The court said: Both Noerr and Pennington involved suits against private parties who had allegedly conspired to influence governmental action. In neither case was it alleged that the governmental entity had collaborated to promote the conspiracy. Where the complaint goes beyond mere allegations of official persuasion by anticompetitive lobbying and claims official participation with private individuals in a scheme to restrain trade, the Noerr-Pennington doctrine is inapplicable. Similarly, in Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 591-93 (7th Cir. 1977), it appeared from the summary of the pleadings and the court’s discussion that plaintiffs were complaining of joint anticompetitive action by private parties and public officials. But see note 30, infra. . The discussion in the following section of this opinion addressing the factors said to govern the application of a commercial activity exception shows how vague and unpredictable such a rule would be. Firms engaged in legitimate efforts to enter into business relations with a public agency on the most favorable" }, { "docid": "14419330", "title": "", "text": "to develop a bus-driving simulator. Given the language of the NYCTA enabling statute, this action was clearly foreseeable to, and therefore clearly authorized by, the New York legislature. Accordingly, the Court finds that NYCTA’s decision to enter into the February 1999 Contract with FAAC falls squarely within the purview of the Parker doctrine, rendering NYCTA immune from antitrust liability arising from this conduct. B. Noerr-Pennington Immunity Defendants’ conduct in marketing the FAAC bus-driving simulator to other potential customers is also immunized from federal antitrust liability by the Noerr-Pennington doctrine. The NoerrPennington doctrine, which is grounded in the Petition Clause of the First Amendment, protects the right of private entities to petition government by shielding such lobbying activities from liability under the antitrust laws. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (immunizing from antitrust liability lobbying efforts by 24 railroads and an association of railroad presidents to obtain legislative and executive action unfavorable to competing trucking firms); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (extending Noerr-Pennington immunity to efforts to influence agency decisionmaking, stating that “joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition”). The Supreme Court has extended Noerr-Pennington immunity to a wide range of activities in addition to traditional lobbying, including publicity campaigns, sales and marketing efforts, and court litigation. See, e.g., Omni Outdoor, 499 U.S. at 373, 111 S.Ct. 1344 (granting Noerr-Pennington immunity to company’s effort to persuade city to adopt ordinance, even though ordinance would exclude company’s competitor); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (“Petitioner, and others ... can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression.”); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (extending Noerr-Pennington immunity to court litigation). There are few exceptions to the application" }, { "docid": "3357627", "title": "", "text": "NoerrPennington doctrine was applied to efforts to influence administrative agencies and the courts. Courts have been reluctant to apply the Noerr-Pennington doctrine to attempts to influence government bodies acting in purely commercial matters such as procurement. Under such circumstances, the government entity is not acting as a political body but as a participant in the marketplace. For example, government decisions concerning specifications for swimming pools, the leasing of a football stadium and the award of a soft drink concession have been held to be outside the scope of the doctrine. George R. Whitten Jr. v. Paddock Pool Builders, Inc., 424 F.2d 25, 31-34 (1st Cir. 1970), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970), on remand, 376 F.Supp. 125 (D.Mass.1974), aff’d, 508 F.2d 547 (1st Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975); Hecht v. Pro Football, Inc., 144 U.S.App.D.C. 56, 444 F.2d 931-942 (D.C. Cir. 1971; Sacramento Coca-Cola Bot. Co. v. Chauffeurs Loc. 150, 440 F.2d 1096, 1099 (9th Cir. 1971), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). GAC has alleged that the defendants falsely disparaged GAC’s STOL aircraft products and services to the United States Armed Services, the CIA and United States government officials thereby causing GAC to lose sales to those government agencies. Even if the Noerr-Pennington doctrine applied, these allegations fall squarely within an exception noted in Noerr and later explained in Trucking Unlimited: “[tjhere are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations. Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process.” Trucking Unlimited, 404 U.S. at 513, 92 S.Ct. at 613; Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220 (7th Cir. 1975). In reaching a decision not to purchase plaintiff’s products and services, none of the government entities acted in either a legislative, adjudicatory or administrative capacity so as to place defendants’ actions within the reach of the Noerr-Pennington exception. Even if this were not" }, { "docid": "9931287", "title": "", "text": "applies to “good faith litigation to protect a valid copyright”); Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir.1997) (declining to decide whether “the NoerrfPennington] immunity doctrine extends to non-commercial litigation” in a case alleging violations of § 1983); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 100-102 (2d Cir.1983) (noting that “whether the Noerr-Pennington doctrine is mandated by the United States Constitution” has not been “definitively resolved by the Supreme Court” or squarely addressed by the Second Circuit). However, the Second Circuit has acknowledged that the doctrine is “an application of the [F]irst [A]mendment,” Suburban Restoration Co., 700 F.2d at 101, and courts within the Second Circuit have held that it is therefore “relevant outside the context of antitrust actions,” Friends of Rockland Shelter Animals, Inc. v. Mullen, 313 F.Supp.2d 339, 343 (S.D.N.Y.2004) (applying Noerr-Pennington doctrine where plaintiff claimed that “the defendant tortiously interfered with a prospective business advantage by lobbying a governmental entity”); see also In re DDAVP Direct Purchaser Antitrust Litig.,- 585 F.3d 677, 685-86 (2d Cir.2009) (noting that under Noerr-Pennington, “citizen petitions are immune from antitrust liability in light of the First Amendment”); Miracle Mile Assocs. v. City of Rochester, 617 F.2d 18, 21 (2d Cir.1980) (noting “the First Amendment protections which underlie the Noerr-Pennington doctrine”); Jackson Hill Road Sharon CT, LLC v. Town of Sharon, 561 F.Supp.2d 240, 245 (D.Conn. 2008) (“Despite its antitrust origins, the [.Noerr-Pennington ] doctrine has been held to protect the exercise of a defendant’s First Amendment rights even when such action would normally constitute tortious interference.”); Tuosto v. Philip Morris USA Inc., No. 05-CV-9384, 2007 WL 2398507, at *5 (S.D.N.Y. Aug. 21, 2007) (“Noerr-Pennington has also been applied to bar liability in state common law tort claims, including negligence and products liability claims, for statements made in the course of petitioning the government.” (citing Hamilton v. Accur-tek, 935 F.Supp. 1307, 1317 (E.D.N.Y.1996))); DirecTV, Inc. v. Lewis, No. 03-CV-6241, 2005 WL 1006030, at *5-7 (W.D.N.Y. Apr. 29, 2005) (applying Noerr-Pennington in context of a claim under the Hobbs Act, 18 U.S.C. § 1951(a)). The Second Circuit also has yet to" }, { "docid": "21848485", "title": "", "text": "airports owned by the municipality, and that such conferral does not violate the anti-monopoly clause of the Texas Constitution. Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 572 (Tex.Civ.App.1974); accord Continental Bus System, Inc. v. City of Dallas, 386 F.Supp. 359, 364-66 (N.D.Tex.1974). The Texas Constitution is not inconsistent with the potentially anticompetitive state policy that can reasonably be inferred from the state’s broad grant of authority over airport management to municipalities. II. We need not pause long over appellants’ contention that, even if the City is immune from federal antitrust scrutiny under Parker, Yellow can be held liable under the Sherman and Clayton Acts for its efforts in securing the exclusive airport taxicab concession from Houston. On appellants’ view, the Noerr-Pennington doctrine cannot shield Yellow because (1) the doctrine applies only to “specific attempts to influence public officials, legislation or executive action” rather than to “arm’s length contractual negotiations,” and (2) even if a private party’s arm’s length contractual activity does implicate the doctrine, Yellow’s relationship with the City falls within a “commercial exception” to Noerr-Pennington immunity. “The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition.” Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp., — U.S. -, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984). In Greenwood Utilities Commission v. Mississippi Power Co., 751 F.2d 1484 (5th Cir. 1985), we recently held that Noerr-Pennington extends to situations where the government enters into a contractual relationship with a private entity, at least in situations “where the government engages in a policy decision and at the same time acts as a participant in the marketplace.” Id. at 1505 (footnote omitted). We expressly rejected the notion that Noerr-Pennington ’s first amendment and statutory roots are not sympathetic to such agreements, even if they can be properly characterized as essentially “commercial.” Id. at 1504-06; cf. Mid-Texas" }, { "docid": "824217", "title": "", "text": "plaintiff’s argument that the Noerr-Pennington doctrine rests on First Amendment grounds, rather than statutory construction, and does not apply to activities intended to influence government officials engaged in commercial or proprietary functions, a view adopted in the prior ruling. See In re Airport Car Rental, supra, 474 F.Supp. at 1082-84, 1086 and 1090. The argument raises a series of issues: A. Is there a commercial activity exception under Noerr-Pennington; B. If the activities complained of retain a degree of First Amendment protection, are they subject to regulation by applying the Sherman Act; C. Is the application of the Sherman Act to these activities supported by the decisions in Parker v. Brown, 317 U.S. 341 [63 S.Ct. 307, 87 L.Ed. 315] (1943), and in Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 [98 S.Ct. 1123, 55 L.Ed.2d 364] (1978); D. If a commercial activity exception did exist, would it apply to the activities complained of here; E. Are those activities in any event removed from protection under NoerrPennington by falling within the sham exception. These issues are discussed in the following sections of this opinion. A. The so-called Commercial Activity Exception to the Noerr-Pennington Doctrine For purposes of this discussion, the Court assumes that the foundation for the so-called Noerr-Pennington doctrine rests on the First Amendment although, as heretofore observed, the First Amendment analysis appears to be superfluous to the determination that joint action which imposes no restraint does not fall within the Sherman Act. The First Amendment analysis led the court in the prior ruling to apply a purported exception to the Noerr-Pennington doctrine for so-called commercial activity, i. e., joint action to influence government officials engaged in commercial or proprietary functions. The authority for such an “exception” was said to derive primarily from three decisions: George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970); Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C.Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); and Sacramento Coca-Cola Bottling Co." }, { "docid": "2172810", "title": "", "text": "doctrines in a single opinion, courts tend to emphasize their similarities. As a result, language in opinions by three courts of appeals seems at first glance to support a commercial exception to Noerr-Pennington. Hecht v. Pro-Football, Inc., 144 D.C.App. 56, 444 F.2d 931, 940-42 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1296-98 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 31-34 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 54 (1970). Other courts have noted that these cases may recognize something resembling a commercial exception. Kurek v. Pleasure Driveway and Park District of Peoria, Illinois, 557 F.2d 580, 592-93 n. 10 (7th Cir.1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978); Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters and Helpers Local No. 150, 440 F.2d 1096, 1099 (9th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). One court has even adopted the exception. City of Atlanta v. Ashland-Warren, Inc., 1982-1 Trade Cases ¶ 64,527 at 72,926-29 (N.D.Ga.1981). It is possible that California Motor Transport implicitly overruled Hecht, Woods and Whitten. See Bustop Shelters, Inc. v. Convenience & Safety Corp., 521 F.Supp. 989, 996 (S.D.N.Y.1981); Reaemco, Inc. v. Allegheny Airlines, 496 F.Supp. 546, 556 n. 6 (S.D.N.Y.1980). Regardless, we do not construe this trilogy to support a commercial exception. All three courts properly couched their discussions of Noerr-Penning-ton in terms of the first amendment and the importance of free-flowing communication to government decision making. Their only possible flaw was presuming that decisions implementing rather than formulating policy (sometimes called “nonpolitical activity”) do not implicate these two interests sufficiently to invoke Noerr-Pennington protection. They did not ignore the interests by creating a commercial exception. III. Conclusion There is no commercial exception to Noerr-Pennington. Instead, the nature of the government activity is one factor in determining the type of public input" }, { "docid": "14419334", "title": "", "text": "pool designs, and not its competitors, in the bid specifications. See id. at 28. Relying on the Supreme Court’s decision in Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), which held that a private firm acting as administrator of a public rationing program was not entitled to Noerr-Pen-nington immunity where it had used its discretionary power to exclude a competing ore processor from the market, the Whitten court found an exception to Noerr-Pennington immunity since the government was acting a proprietary capacity. See id. at 33. There are a number of problems with Doron’s reliance on Whitten. First, the Whitten facts are different from the facts of this case. In this case, each public transit authority controlled its own RFPs. In Whitten, on the other hand, “the initial responsibility for recommending specifications [had] been entrusted to a hired professional,” and all selling efforts were “directed at that professional,” so there was a much stronger case that the decisional autonomy of the single public consumer had been corrupted by the defendants’ conduct. See id. at 29; see also Richard Hoffman Corp., 581 F.Supp. at 374 (finding that plaintiff adequately alleged anticompetitive conduct where private firm had prepared bid specifications and written in its own product, thereby denying the public agency independent judgment in its choice of product). Second, Whitten has not withstood the test of time. Later cases expressly reject the idea of a commercial exception to Noerr-Pennington. See A Fisherman’s Best, Inc. v. Recreational Fishing Alliance, 310 F.3d 183, 194 (4th Cir.2002); Greenwood Utilities Comm’n v. Miss. Power Co., 751 F.2d 1484, 1505 (5th Cir. 1985) (refusing to recognize a commercial exception to Noerr-Pennington immunity, since it is difficult to determine when a government is acting in a regulatory capacity as opposed to engaging in purely commercial conduct); In re Airport Car Rental Antitrust Litig., 693 F.2d 84, 87 (9th Cir.1982); Santana Prods. Inc. v. Bobrick Washroom Equip., Inc., 249 F.Supp.2d 463, 487-91 (M.D.Pa.2003) (expressly holding, under facts similar to those here, that “[t]here is no ‘commercial’ exception to" }, { "docid": "2085674", "title": "", "text": "City officials’ decision in the airport controversy.” 580 F.2d at 296. 13. TCI alleges that the defendants in Westbor-ough Mall attempted to bribe public officials. However, our reading of that case reveals that it did not invoke the sham exception on grounds of bribery but on the ground that the plaintiffs might be able to prove an illegal conspiracy between defendants and the City which included illegal private negotiations such as those at issue in the case before us. . TCI also alleges that the trial court’s conspiracy instruction \"essentially negated\" the Noerr-Pennington defense. We reject this argument. First of all, TCI did not specifically raise this objection below, and thus we could order a new trial on this basis only if the alleged error is “plain error.” In any event, we find TCI’s oblique argument to be completely without merit. We find nothing in the conspiracy instruction which negates the Noerr-Pennington instruction. The jury was informed that “each * * * instruction is equally binding upon you.” Conspiracy Instruction Number 11 read along with Instruc tions Number 21 and Number 14 (Noerr-Pen-nington ) fully informed the jury that before any antitrust liability could be imposed, it had to find that TCI “knowingly entered into a combination or conspiracy” and that in determining liability, it could not consider TCI’s \"legitimate lobbying efforts.” . Central raises several other reasons why TCI’s conduct was not protected under Noerr-Pennington. Although some of these arguments may have merit, we need not reach them here. Central argues that the Noerr-Pennington doctrine is inapplicable here because this case involves a municipality acting in an essentially commercial rather than in an executive, legislative or adjudicatory capacity. See, e.g., Sacramento, 440 F.2d at 1099; Hecht v. Pro-Football, Inc., 444 F.2d 931, 941-42 (D.C.Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); George R. Whitten, Jr. v. Paddock Pool Builders, Inc., 424 F.2d 25, 33 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970). Central also argues that TCI’s conduct cannot be described as merely \"political” in nature because the" }, { "docid": "14419332", "title": "", "text": "of Noerr-Pennington immunity. The Noerr court warned that neither the subjective intent of the defendant nor the “unethical character of the conduct involved” is relevant to the application of immunity. See, e.g., Prof'l Real Estate Investors, 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); Pennington, 381 U.S. at 670 (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”); BusTop Shelters, Inc. v. Convenience & Safety Corp., 521 F.Supp. 989, 995 (S.D.N.Y.1981). Thus, Defendants are entitled to . Noerr-Pennington protection even if they pressured government officials, lied to the government about the merits of Doron’s simulator, or otherwise drew the public transit authorities into their scheme as “co-conspirators,” as long as their conduct was part of a good faith campaign aimed as securing government action. See, e.g., Omni Outdoor, 499 U.S. at 382-83, 111 S.Ct. 1344; Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 229-31 (7th Cir.1975); N.Y. Jets, 2005 WL 2649330, at *6; BusTop Shelters, 521 F.Supp. at 995-96. Similarly, in Omni Outdoor Advertising, the Supreme Court made clear that there is no conspiracy exception to the Noerr-Pennington doctrine. 499 U.S. at 383, 111 S.Ct. 1344. Thus, even if Defendants did conspire among themselves and with other public transit authorities “to employ government action as a means of stifling competition” by Doron, Noerr-Pennington immunity still applies. Id. at 382. Doron urges the Court to find that Noerr-Pennington immunity does not shield Defendants in this case because Defendants dealt with public transit authorities acting in a proprietary, rather than a policymaking, capacity. In support of this position, Doron cites extensively to George E. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., (1st Cir.1970) a First Circuit case from 1970. Whitten held that Noerr-Pennington immunity does not extend to efforts by private business to sell products to public officials acting under competitive bidding statutes. 424 U.S. 25, 33 (1970). Similar to this case, the Whit-ten defendants had lobbied public agents— architects drafting specifications for public swimming pools — to include technical descriptions that fit only its swimming" }, { "docid": "21848486", "title": "", "text": "within a “commercial exception” to Noerr-Pennington immunity. “The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition.” Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp., — U.S. -, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984). In Greenwood Utilities Commission v. Mississippi Power Co., 751 F.2d 1484 (5th Cir. 1985), we recently held that Noerr-Pennington extends to situations where the government enters into a contractual relationship with a private entity, at least in situations “where the government engages in a policy decision and at the same time acts as a participant in the marketplace.” Id. at 1505 (footnote omitted). We expressly rejected the notion that Noerr-Pennington ’s first amendment and statutory roots are not sympathetic to such agreements, even if they can be properly characterized as essentially “commercial.” Id. at 1504-06; cf. Mid-Texas Communications Systems, Inc. v. AT & T, 615 F.2d 1372, 1382-84 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). Viewing the record in the light most favorable to appellants, the most that can be said is that Yellow secured from the City an exclusive concession whose anticompetitive effects stem primarily from a valid municipal, and vicariously state, policy. It would be anomalous to hold on the one hand that government can contract with private entities to effectuate valid, albeit anticompetitive, policies, while holding on the other hand that private entities cannot petition government to participate in the public endeavor. There is no such case as Parker v. Noerr-Pennington. In more than one sense, Yellow was the vehicle through which the city implemented its vision of ground transportation at Intercontinental. If “the basic principle of Noerr-Pennington [is] that it is lawful to petition the government for anti-competitive action,” Greenwood Utilities, 751 F.2d at 1506, then the federal antitrust laws cannot meter Yellow’s conduct in this case. See generally 1 P." }, { "docid": "2172809", "title": "", "text": "63 S.Ct. 307, 313-14, 87 L.Ed. 315 (1943). Parker stands for the proposition that “the federal antitrust laws do not prohibit a State ‘as sovereign’ from imposing certain anticompetitive restraints ‘as an act of government.’ ” City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 391, 98 S.Ct. 1123, 1125, 55 L.Ed.2d 364 (1978). Thus, whether the State is engaged in a commercial enterprise is relevant in determining the State’s liability under Parker. Id. When private parties persuade state officials to effectuate some anticompetitive policy, an antitrust plaintiff might name both the private parties and the State as defendants and thus implicate both Noerr-Pennington and Parker. Because their liability is governed by “two separate doctrines,” New Mexico v. American Petrofina, 501 F.2d 363, 368 (9th Cir.1974), one defendant might be liable and the other exempt. See City of Lafayette, 435 U.S. at 399-400 & n. 17, 98 S.Ct. at 1129-1130 & n. 17 (noting the different interests protected by the two doctrines). It would be inapt to require symmetry. When discussing both doctrines in a single opinion, courts tend to emphasize their similarities. As a result, language in opinions by three courts of appeals seems at first glance to support a commercial exception to Noerr-Pennington. Hecht v. Pro-Football, Inc., 144 D.C.App. 56, 444 F.2d 931, 940-42 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1296-98 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 31-34 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 54 (1970). Other courts have noted that these cases may recognize something resembling a commercial exception. Kurek v. Pleasure Driveway and Park District of Peoria, Illinois, 557 F.2d 580, 592-93 n. 10 (7th Cir.1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978); Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters and Helpers Local No. 150, 440 F.2d 1096, 1099 (9th" }, { "docid": "14419333", "title": "", "text": "in Omni Outdoor Advertising, the Supreme Court made clear that there is no conspiracy exception to the Noerr-Pennington doctrine. 499 U.S. at 383, 111 S.Ct. 1344. Thus, even if Defendants did conspire among themselves and with other public transit authorities “to employ government action as a means of stifling competition” by Doron, Noerr-Pennington immunity still applies. Id. at 382. Doron urges the Court to find that Noerr-Pennington immunity does not shield Defendants in this case because Defendants dealt with public transit authorities acting in a proprietary, rather than a policymaking, capacity. In support of this position, Doron cites extensively to George E. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., (1st Cir.1970) a First Circuit case from 1970. Whitten held that Noerr-Pennington immunity does not extend to efforts by private business to sell products to public officials acting under competitive bidding statutes. 424 U.S. 25, 33 (1970). Similar to this case, the Whit-ten defendants had lobbied public agents— architects drafting specifications for public swimming pools — to include technical descriptions that fit only its swimming pool designs, and not its competitors, in the bid specifications. See id. at 28. Relying on the Supreme Court’s decision in Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), which held that a private firm acting as administrator of a public rationing program was not entitled to Noerr-Pen-nington immunity where it had used its discretionary power to exclude a competing ore processor from the market, the Whitten court found an exception to Noerr-Pennington immunity since the government was acting a proprietary capacity. See id. at 33. There are a number of problems with Doron’s reliance on Whitten. First, the Whitten facts are different from the facts of this case. In this case, each public transit authority controlled its own RFPs. In Whitten, on the other hand, “the initial responsibility for recommending specifications [had] been entrusted to a hired professional,” and all selling efforts were “directed at that professional,” so there was a much stronger case that the decisional autonomy of the single public consumer" }, { "docid": "193072", "title": "", "text": "In this case, the alleged restraint of trade was imposed by governmental actors as the intended consequence of the challenged concerted activity. Thus, this case falls within Noerr, and not within Trial Lawyers. Santana has not cited any other Supreme Court precedent that recognized a “market participant” or “commercial” exception to Noerr/Pennington immunity. Indeed, the Court’s decision in Pennington is inconsistent with the recognition of the “commercial” exception advanced by Santana. In Pennington, part of the challenged conduct included lobbying the Tennessee Valley Authority (“TVA”) to curtail purchases of coal on the spot market because such sales were not subject to re.quirements that the coal producers pay the miners a certain minimum wage. The jury had been instructed that this approach to the TVA would be illegal if the TVA was urged to modify its coal purchasing policies for the purpose of driving small producers out of business. The Supreme Court held that such an instruction was error because, under Noerr, “[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.” 381 U.S. at 670, 85 S.Ct. 1585. The fact that the conduct in question was aimed at TVA’s purchasing policies did not enter into the analysis. Santana nonetheless persists that there is a “long line of cases that hold ... that the Noerr doctrine does not immunize eon- certed action by sellers against the government when the government is acting in a commercial capacity as a buyer of goods or services.” (Rev. Mem. in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 27.) Santana’s citations to this purported “long line” of decisional law begins with a 1970 First Circuit ruling, George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970), and ends with a 1979 decision from the District of Columbia, General Aircraft Corp. v. Air America, Inc., 482 F.Supp. 3 (D.D.C.1979). The first case cited by Santana, Whitten, was decided in the context of a summary judgment motion in which the defendant" } ]

[ { "docid": "22787166", "title": "", "text": "acts constitute persecution. This circuit has defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Ghaly, 58 F.3d at 1431 (quoting Elias-Zacarias, 502 U.S. at 489, 112 S.Ct. 812). In addition, acts of violence against a petitioner’s friends or family members may establish a well-founded fear of persecution. This court has required, however, that the violence “create a pattern of persecution closely tied to the petitioner.” Arriaga-Barrientos, 937 F.2d at 414. Persecution is defined as “an extreme concept that does not include every sort of treatment our society regards as offensive.” Id. The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment she received rises to the level of persecution. Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998). An alien’s well-founded fear must be both subjectively genuine and objectively reasonable. Elnager, 930 F.2d at 786 (citing Elias-Zacarias, 908 F.2d at 1455). An alien satisfies the subjective component by credibly testifying that she genuinely fears persecution. Singh, 134 F.3d at 966. . “The objective component requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution.” Ghaly, 58 F.3d at 1428 (quoting Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178-79 (9th Cir.1991)). The applicant has the burden of making this showing. Fisher v. INS, 37 F.3d 1371, 1376 (9th Cir.1994). Korablina clearly met the subjective component of the test. The IJ found her testimony to the effect that she fears persecution to be credible. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985) (holding that a reviewing court should give deference to an IJ’s credibility finding). The remaining question is whether Korablina established that a reasonable person in her situation would fear persecution on the basis of her religion. The IJ found that Korablina had established by her testimony that' she had experienced a “serious [form] of discrimination because she is Jewish.” However, the IJ found, citing Ghaly, that her numerous experiences did" } ]

[ { "docid": "22467683", "title": "", "text": "withholding of removal. Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004). II. Eligibility for Asylum The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is one who is unwilling or unable to return to his or her native country because of past persecution, or a well-founded fear of future persecution, on account of the individual’s race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). Njuguna claims a well-founded fear of future persecution in Kenya because of his political opinion. A well-founded fear has both subjective and objective components. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n. 9 (9th Cir.2003). Njuguna established the subjective component with his credible testimony. See Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). He has the burden of meeting the objective component by demonstrating a well-founded fear of persecution through credible, direct, and specific evidence. See Velarde, 140 F.3d at 1310. A “one in ten chance” that Njuguna will suffer persecution is enough. Id. (quoting Montecino v. INS, 915 F.2d 518, 520 (9th Cir.1990)). The treatment of Njuguna’s Kenyan relatives amounts to persecution. They have been imprisoned, beaten, cut with machetes, and threatened with further physical harm. See Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000) (petitioner demonstrated persecution where he had been threatened with death, two of his family members were murdered, and his mother beaten); Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999) (physical harm consistently treated as persecution). Njuguna personally has not suffered persecution simply because his would be abusers cannot reach him. The lack of past persecution against him does not foreclose asylum eligibility. Gonzalez v. INS, 82 F.3d 903, 909-910 (9th Cir.1996) (violence against family members supports a petitioner’s well-founded fear if linked to petitioner). Some of the attacks against Njuguna’s family were accompanied by specific threats against Njuguna. In order to qualify for asylum based on a well-founded fear of persecution, the fear" }, { "docid": "4461020", "title": "", "text": "or forces that the government is unwilling or unable to control. Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant satisfies the subjective component by credibly testifying that she genuinely fears persecution.” Id. (internal quotation marks and citation omitted). Lolong satisfied this requirement with her credible testimony that she fears being hurt, raped, or killed in Indonesia. An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir.2003). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Sael, 386 F.3d at 925 (quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir.2004)). If not relying on a showing of past persecution, an asylum applicant’s fear of future persecution may be based on either individualized or group-based risk of persecution. See, e.g., Hoxha, 319 F.3d at 1182-83. Where an applicant establishes that she is a member of a mistreated group, the level of individualized targeting that she must show is inversely related to the degree of persecution directed toward that group generally. Id. Accordingly, if an applicant demonstrates that she is a member of a group against which there is “a pattern or practice” of persecution, she need not further prove that she would be singled out for persecution. 8 C.F.R. § 208.13(b)(2)(iii); Kotasz v. INS, 31 F.3d 847, 852-53 (9th Cir.1994). If the applicant demonstrates that she is a member of a “disfavored group,” but the group persecution does not rise to the level of a pattern or practice of persecution, then the applicant must also demonstrate that she is more likely to be targeted as a" }, { "docid": "22326493", "title": "", "text": "political opinion.” While “[a]n alien who establishes past persecution is presumed to have a well-founded fear of persecution .... [that] presumption may be rebutted where the conditions in the country have significantly changed” Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir.1997) (citation omitted). Any alien who premises an asylum claim on a well-founded fear of persecution must demonstrate a subjectively genuine and objectively reasonable fear Arriaga-Barrientos v. INS, 987 F.2d 411, 413 (9th Cir.1991). While the subjective component is satisfied by “showing that the alien’s fear is genuine” id., the objective component requires “credible, direct, and specific evidence in the record that would support a reasonable fear of persecution” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (internal punctuation and source reference omitted). For a sustainable showing of past persecution, a “[p]etitioner must establish that the mistreatment she suffered ... was substantially more grievous in kind or degree than the general manifestation of hostility between ... competing ethnic and religious groups ...” id. at 967. But as to the requisite fear of future persecution, Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)(internal quotation marks, punctuation and citations omitted) teaches: [T]he applicant is not required to show that she would be singled out individually for persecution if there is a pattern or practice of persecution of groups of persons similarly situated and she can establish her own inclusion in the group such that her fear of persecution upon return is reasonable. Thus, if [an applicant] is able to show a “pattern or practice” of persecution against a group of which she is a member, then she will be eligible for asylum. Finally, affirmative state action is not necessary to establish a well-founded fear of persecution if the government “is unwilling or unable to control those elements of its society responsible for targeting” a particular class of individuals id. at 1036. Standard of Review Adverse BIA asylum decisions are upheld if supported by “substantial evidence” (see Singh, 134 F.3d at 966). Under that deferential standard “a petitioner contending that the Board’s findings are erroneous must establish that the evidence" }, { "docid": "22624379", "title": "", "text": "credible, is sufficient to establish that she has a subjectively genuine fear of future persecution. Id. at 1310. The objective component is more demanding and “requires credible, direct, and specific evidence,” Cordon-Garcia, 204 F.3d at 990, that the petitioner faces an individualized risk of persecution or that there is a pattern or practice of persecution against similarly situated individuals. 8 C.F.R. § 208.13; Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.2004). Persecution is not limited to government-sponsored violence; it can also include “[discrimination, harassment, and violence by groups that the government is unwilling or unable to control.” Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996). Lolong has satisfied her burden of showing a genuine subjective fear of future persecution. In her testimony before the IJ, she described her fears and gave specific examples of violent incidents, some involving her friends and family, that have given rise to her fears. Moreover, the IJ expressly noted that Lolong testified credibly and was entirely forthright throughout her removal proceedings. In short, there is no reason to doubt that Lolong’s fears of persecution should she return to Indonesia are subjectively genuine. The dispute instead centers on whether her fears are objectively reasonable. The IJ, citing the experiences of Lolong’s family and friends during the riots as well as the Indonesian government’s apparent unwillingness or inability to control the militant Islamist groups responsible for much of the anti-Chinese and anti-Christian violence, determined that Lolong’s fears were in fact objectively reasonable. According to the IJ, even though most Chinese Christians in Indonesia were not subject to physical attacks, occasional continuing violence was sufficient to show that the government could not or would not protect the Chinese Christian population generally and that Lolong’s fears were therefore objectively reasonable. Reviewing the IJ’s factual findings de novo, however, the BIA found otherwise. The BIA concluded that, absent evidence that the Indonesian government was either unable or unwilling to control these militant groups, “the mere fact that some attacks on Chinese or on Christians continue to occur” was insufficient to support a finding that Lo-long’s fear of future" }, { "docid": "22720512", "title": "", "text": "(“[T]his court does not require corroborative evidence.... ”). C. Well-founded Fear Because the facts alleged in Malty’s declaration and presented in the Freedom House Report are not inherently unbelievable, we must take them as true. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir.1991). In light of this evidence, we hold that Malty has a “reasonable likelihood” of meeting the statutory requirements for demonstrating a well-founded fear of persecution on account of religion. See Ordonez v. INS, 345 F.3d 777, 785-86 (9th Cir.2003) (petitioner need not demonstrate conclusively his eligibility for relief in order to prevail in a motion to reopen). In fact, it appears that, on the basis of the record before us, unless after a hearing Malty’s testimony were deemed to be not credible, he would be statutorily eligible for asylum. Eligibility for asylum based on a well-founded fear of future persecution requires an applicant to satisfy both a subjective and an objective test. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Applicants satisfy the subjective test by credibly testifying that they genuinely fear persecution by their government or forces that their government is unable or unwilling to control on account of a statutorily-protected ground. Id. The objective component is satisfied where credible, direct, and specific evidence in the record supports a reasonable fear of persecution. Id. Malty’s fear of the uncontrolled actions of Islamic militants suffices to meet the subjective component of the well-founded fear test. See Singh, 134 F.3d at 966 (an applicant’s credible testimony fulfills the subjective prong); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003). The evidence also appears to satisfy the objective component of the test. As in Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998), in which we found petitioners eligible for asylum, Malty has demonstrated a pattern and practice of persecution, including beatings, arrests, and threats, against his similarly situated family members. The attacks were perpetrated by militant anti-Christian groups that the government was either unwilling or unable to control. Furthermore, Malty’s father was threatened that Malty would be arrested if he returned to Egypt." }, { "docid": "22699017", "title": "", "text": "testified that the Separatists specifically targeted Armenian men to conscript and send to the front line where casualties ordinarily are highest. He also testified that the Separatists came to his home on the same day his father-in-law, the head of Melkonian’s family, had spoken publicly against the Muslims and in favor of Christianity. Given this evidence, the Separatists’ attempts to forcibly recruit Melkonian—unlike the guerillas’ actions in Elias-Zacarias—are properly labeled “on account of’ his ethnicity and religion, for he was singled out for this treatment because of these protected grounds. See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir.2000) (“That persecution was ‘on account of one or more of the specified grounds may be shown by inference where the inference is one that may clearly be drawn from facts in evidence.”). This is so even though the Separatists also sought to advance their own political ends. See Navas v. INS, 217 F.3d 646, 656 (9th Cir.2000) (“[T]he protected ground need only constitute a motive for the persecution in question; it need not be the sole motive.”). In any event, Melkonian does not base his asylum claim on a contention that the Separatists’ pursuit of him constitutes past persecution within the meaning of § 208(a). Rather, he bases it on his fear of what would happen to him upon his return to Abkhazia. Melkonian does not fear persecution if he were to return to Abkhazia merely because of his failure to fight with the Separatists. Rather, he fears he will be killed because of his prior support for the Georgians (political opinion), and because he is an Armenian (ethnicity) and a Christian (religion). Because his credibility has not been questioned, Melko-nian’s testimony concerning this fear suffices to meet the subjective component of the well-founded fear test. Singh, 134 F.3d at 966. The only question that remains, then, is whether this fear is supported by credible, direct, and specific evidence in the record. See id. We hold that “any reasonable factfinder would have to conclude” that Melkonian’s fear of persecution based on a protected ground is objectively reasonable. Elias-Zacarias, 502 U.S." }, { "docid": "23273058", "title": "", "text": "Cir.2003); see also Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003) (“We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.”). When, as here, the BIA affirms an IJ’s decision without opinion, we review the IJ’s decision, which constitutes the final agency determination. See He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir.2003). III. ANALYSIS A. Asylum 1. Statutory Requirements The Attorney General may grant asylum to an alien who qualifies as a refugee — that is, one who is unable or unwilling to return to their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Persecution is “ ‘the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.’ ” Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)). “Persecution need not be directly at the hands of the government; private individuals that the government is unable or unwilling to control can persecute someone” for purposes of asylum. Singh v. INS, 134 F.3d 962, 967 n. 9 (9th Cir.1998) (citing Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)). “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (citing Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)). Karouni’s credible testimony satisfies the subjective component. See Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.2004). To satisfy the objective component, an alien must show that he has suffered from past persecution or that he has a “ ‘good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.’ ” Nagoulko, 333 F.3d at 1016 (quoting Duarte de Guinac, 179 F.3d at 1159). 2. “On account of race, religion," }, { "docid": "22694954", "title": "", "text": "practiced Christianity openly. Nahrvani made no showing that the conditions of his ten-year residence in Germany were so “substantially and consciously restricted by[the German authorities] that he ... was not in fact resettled.” 8 C.F.R. § 1208.15(b). As the IJ’s finding of firm resettlement in Germany is supported by substantial evidence, Nahrvani’s request for asylum from Iran must be denied. B. Germany Nahrvani requested asylum from both Iran and Germany, and the IJ addressed the issue of asylum from both countries. “[T]o be eligible for asylum, an applicant must establish either past persecution or a well-founded fear of present persecution on account of a protected ground.” Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004) (citation, alteration, and internal quotation marks omitted). To establish a well-founded fear of persecution, an applicant must show that his fear is “both subjectively genuine and objectively reasonable.” Gormley v. Ashcroft, 364 F.3d 1172, 1180 (9th Cir.2004) (citation omitted). “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Id. (citation omitted). “The objective component of this test requires showing, by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility.” Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir.2001) (citation and internal quotation marks omitted). “This showing may be made by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant.” Id. (citation and internal quotation marks omitted). We have characterized “persecution as an extreme concept, marked by the infliction of suffering or harm in a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation, alteration, and internal quotation marks omitted). Physical violence inflicted against an individual often “meets the requirement of severity that characterizes persecution[.]” Hoxha v. Ashcroft, 319 F.3d 1179, 1182 n. 5 (9th Cir.2003) (citation omitted); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999) (“we have consistently found persecution where, as here, the petitioner was physically harmed ... ”) (citations omitted). Although death threats against an individual may be sufficient to constitute persecution, see" }, { "docid": "22720511", "title": "", "text": "be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(6)(b). This court has “recognize[d] the serious difficulty with which asylum applicants are faced in their attempts to prove persecution, and has adjusted the evidentiary requirements accordingly.” Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir.2000) (citation omitted). Specifically, we have recognized that “corroborating affidavits from relatives or acquaintances living outside of the United States ... [are] almost never easily available.” Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000); see also Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996). Just as credible testimony from the petitioner, without supporting affidavits or declarations, establishes eligibility for relief during an asylum hearing, see Ladha v. INS, 215 F.3d 889, 899-901 (9th Cir.2000) (collecting cases), a sworn statement from the movant may be sufficient to meet the evi-dentiary burden in the motion to reopen context. The BIA erred in holding that Malty’s declaration along with the Freedom House Report was insufficient to warrant reopening. Cf. Cordon-Garcia, 204 F.3d at 992 (“[T]his court does not require corroborative evidence.... ”). C. Well-founded Fear Because the facts alleged in Malty’s declaration and presented in the Freedom House Report are not inherently unbelievable, we must take them as true. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir.1991). In light of this evidence, we hold that Malty has a “reasonable likelihood” of meeting the statutory requirements for demonstrating a well-founded fear of persecution on account of religion. See Ordonez v. INS, 345 F.3d 777, 785-86 (9th Cir.2003) (petitioner need not demonstrate conclusively his eligibility for relief in order to prevail in a motion to reopen). In fact, it appears that, on the basis of the record before us, unless after a hearing Malty’s testimony were deemed to be not credible, he would be statutorily eligible for asylum. Eligibility for asylum based on a well-founded fear of future persecution requires an applicant to satisfy both a subjective and an objective test. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Applicants satisfy the subjective test by credibly testifying that" }, { "docid": "22726860", "title": "", "text": "“because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A) (1994)). “Persecution encompasses the infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive.” Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004) (internal quotation marks omitted). An asylum applicant’s well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999). An applicant “satisfies the subjective component by credibly testifying that she genuinely fears persecution.” Id. Sael satisfied this requirement with her credible testimony that she fears being hurt, raped or killed in Indonesia. AR 129. An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. In this case, Sael relies on a fear of future persecution, not on a showing of past persecution. “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Knezevic, 367 F.3d at 1212. An asylum applicant demonstrates a well-founded fear of future persecution in either of two ways. Under the first approach, the applicant relies on establishing “a pattern or practice of persecution of people similarly situated.... ” Knezevic, 367 F.3d at 1213. Alternatively, an applicant may prove that she is a member of a “disfavored group” coupled with a showing that she, in particular, is likely to be targeted as a member of that group. Mgoian, 184 F.3d at 1035 n. 4 (internal quotation marks omitted); see also Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir. 2003); Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996); Kotasz, 31 F.3d at 853. The latter claim consists of two elements' — ■ membership in a “disfavored group” and an individualized risk of being singled out for" }, { "docid": "22699004", "title": "", "text": "WILLIAM A. FLETCHER, Circuit Judge. Petitioner Arout Melkonian (“Melkoni-an”), an ethnic Armenian and a Christian, lived in Abkhazia, an autonomous region within Georgia, from his birth in 1959 until September of 1992, when he fled across the Russian border to escape kid-naping by ethnic-Abkhaz Separatists. He subsequently left Russia and, in early 1994, entered the United States illegally and applied for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1253(h) (1994). The Immigration Judge (“IJ”) denied his application, and the Board of Immigration Appeals (“BIA”) affirmed. Melkonian timely appealed. I. Governing Law and Standard of Review To establish eligibility for asylum, an applicant must demonstrate his or her status as a refugee. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). A refugee is an alien who is unable or unwilling to return to the country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (1994). Eligibility for asylum based on a well-founded fear of future persecution requires an applicant to satisfy both a sub jective and an objective test. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Applicants satisfy the subjective test by credibly testifying that they genuinely fear persecution by their government, or forces their government is unable or unwilling to control, on account of a statutorily-protected ground. Id. The objective component is satisfied where credible, direct, and specific evidence in the record supports a reasonable fear of persecution. Id. We review factual findings of the IJ and BIA under the “substantial evidence” standard. Singh v. Ilchert (Singh I), 63 F.3d 1501, 1506 (9th Cir.1995). That is, we must sustain factual findings if supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review questions of law regarding the INA de novo, but give deference to the BIA’s interpretation of the statute. Ladha v. INS, 215 F.3d 889," }, { "docid": "2947532", "title": "", "text": "opinion) in a way regarded as offensive.’ ” Prasad v. I.N.S., 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)). The “heavily fact-dependent” issue of persecution can be framed as follows: “looking at the cumulative effect of all the incidents Petitioner has suffered, [does] the treatment she received rise[] to the level of persecution[?]” Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir.1998). “Persecution need not be directly at the hands of the government; private individuals that the government is unable or unwilling to control can persecute someone” for purposes of asylum. Id. at 967 n. 9; see also Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1097 (9th Cir.2000) (“Geovanni must show that the persecution he suffered was inflicted either by the government or by persons or organizations which the government is unable or unwilling to control.”) (quotation marks omitted). “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. I.N.S., 333 F.3d 1012, 1016 (9th Cir.2003). An alien satisfies the subjective component by credibly testifying that she genuinely fears persecution. Id. To satisfy the objective component, an alien must show that she has suffered from past persecution or that she has a “good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.” Id. (quoting Duarte de Guinae v. I.N.S., 179 F.3d 1156, 1159 (9th Cir.1999)). “A finding of past persecution raises the presumption that an asylum-seeker has a well-founded fear of future persecution, rebuttable by a showing, by a preponderance of the evidence, that conditions have changed sufficiently so as to overcome that presumption.” Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir.2002). In order to rebut this presumption, [t]he INS is obligated to introduce evidence that, on an individualized basis, rebuts a particular applicant’s specific grounds for his well-founded fear of future persecution. Information about general changes in the country is not sufficient. If the INS has not met its burden of production, it is unnecessary to remand this case" }, { "docid": "22341668", "title": "", "text": "it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004). Similarly, we review for substantial evidence the factual findings underlying the BIA’s determination that Ahmed did not qualify for withholding of removal, see Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and the BIA’s finding that Ahmed is not eligible for protection under the Convention Against Torture, see Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). II. Asylum A. Applicable Legal Standard To be eligible for asylum, Ahmed must establish that he is a refugee — namely, that he is unable or unwilling to return to Bangladesh “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004); 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies the subjective compo-' nent by credibly testifying that[he] genuinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). “The objective component can be established in two different ways.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). One way to satisfy the objective component is to prove persecution in the past, giving rise to a rebuttable presumption that a well-founded fear of future persecution exists. The second way is to show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotations and citations omitted). While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft," }, { "docid": "4461019", "title": "", "text": "a divided opinion (2-1) the BIA sustained the Service’s appeal and vacated the petitioner’s application for asylum. Lolong timely petitioned for review. We have jurisdiction over Lolong’s petition pursuant to 8 U.S.C. § 1252(a). Because the BIA issued a reasoned opinion after conducting its own review of the record, we review the BIA’s decision for substantial evidence. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). In doing so, we accept Lolong’s testimony as true. Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000) (“Where the BIA does not make an explicit adverse credibility finding, we must assume that the applicant’s factual contentions are true.”). II. In order to be eligible for asylum, Lolong must establish that she is a refugee — a person unable or unwilling to return to Indonesia “because of persecution or a well-founded fear of persecution on account, of race, religion, nationality, membership in a particular social group, or political opinion.” Sael, 386 F.3d at 924; 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant satisfies the subjective component by credibly testifying that she genuinely fears persecution.” Id. (internal quotation marks and citation omitted). Lolong satisfied this requirement with her credible testimony that she fears being hurt, raped, or killed in Indonesia. An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir.2003). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Sael, 386 F.3d at 925" }, { "docid": "22556562", "title": "", "text": "children. This discussion, as the government properly notes, is relevant only to claims of future persecution. We hold that the IJ properly considered whether Mans-our demonstrated past persecution and/or a well-founded fear of future persecution. We believe that substantial evidence supports the IJ’s conclusion that Mansour has not suffered past persecution. The testimony and evidence presented by Petitioners does demonstrate that Coptic Christians are subject to discrimination within Egypt on the basis of their religion. However, the evidence does not compel us to conclude that the discrimination rose to the level of persecution. As the IJ stated, Petitioners failed to establish that those that “bothered” or “mistreated” them were individuals that the government was unable or unwilling to control and noted that the relevant State Department Profile reflected the fact that Egyptian authorities have prosecuted those who have committed “acts of terrorism” against Christians. This case is similar to Ghaly v. INS, a case involving a Coptic Christian petitioner. 58 F.3d at 1431. There we concluded that “where private discrimination is neither condoned by the state nor the prevailing social norm, it clearly does not amount to ‘persecution’ within the meaning of the Act.” Id. We recognize that in some cases discrimination may rise to the level of persecution. See Duarte de Guinac v. INS, 179 F.3d 1156, 1161-63 (9th Cir.1999); Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998). The record demonstrates that Petitioners have been the unfortunate targets of discrimination because of their religion; however, the discrimination suffered by Petitioners does not constitute persecution within the meaning of the Act. Mansour has not demonstrated that he has a well-founded fear of future persecution because of his religion. “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003). To satisfy the objective component, an alien must show that he has suffered from past persecution or that he has a “good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.” Id." }, { "docid": "22699018", "title": "", "text": "sole motive.”). In any event, Melkonian does not base his asylum claim on a contention that the Separatists’ pursuit of him constitutes past persecution within the meaning of § 208(a). Rather, he bases it on his fear of what would happen to him upon his return to Abkhazia. Melkonian does not fear persecution if he were to return to Abkhazia merely because of his failure to fight with the Separatists. Rather, he fears he will be killed because of his prior support for the Georgians (political opinion), and because he is an Armenian (ethnicity) and a Christian (religion). Because his credibility has not been questioned, Melko-nian’s testimony concerning this fear suffices to meet the subjective component of the well-founded fear test. Singh, 134 F.3d at 966. The only question that remains, then, is whether this fear is supported by credible, direct, and specific evidence in the record. See id. We hold that “any reasonable factfinder would have to conclude” that Melkonian’s fear of persecution based on a protected ground is objectively reasonable. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. According to the uncontradicted evidence in the record, the Separatists are currently in control of Abkhazia and have engaged in a systematic campaign of ethnic cleansing with the aim of eliminating all non-Abkhaz in the region, and have effectively succeeded- — -through torture, rape, and murder — in achieving just that. The State Department has reported that displaced persons from Abkhazia attempting to return do so at great personal risk. The risk to Melkonian is particularly high, given that the Separatists in Gagra specifically targeted him before his departure. They repeatedly broke into his home; they destroyed his property; they murdered a woman caring for his cattle; and they attempted to murder a man they mistook for his father-in-law. To satisfy the objective component of the well-founded fear test, an applicant need only produce credible evidence that persecution is a “reasonable possibility.” Singh I, 63 F.3d at 1506. See also INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (ten percent probability sufficient). The evidence" }, { "docid": "22670117", "title": "", "text": "hearing. Specifically, Najmabadi points to the 2003 Country Reports on Human Rights Practices (the 2003 Report). However, the 2003 Report merely describes conditions similar to those found in the 1999 Report. Though the 2003 Report states, “[t]he Government’s poor human rights record worsened,” it goes on to describe, in almost carbon copy form, the examples contained in the 1999 Report, i.e., “summary executions,” “disappearances,” “torture and other degrading treatment,” and “flogging.” This is significantly different from the situation in Malty, where we juxtaposed harassing telephone calls with torture, beatings, and death threats. The bulk of Najmabadi’s remaining evidence, though voluminous, is similarly redundant. Moreover, as the BIA concluded, the evidence Najmabadi presents in her motion to reopen does not share the same type of individualized relevancy we required in Malty. There, in addition to presenting evidence of a change in country conditions indicating that harassment of Coptic Christians had escalated to persecution, Malty presented evidence detailing six separate incidents of persecution of his family members, including the threat that Malty would be arrested and prosecuted if he returned to Egypt. Malty, 381 F.3d at 944. Likewise, in Bhasin v. Gonzales, we also required previously unavailable evidence to be material to the petitioner’s claim. There, while the IJ had found the petitioner to have established a well-founded fear of future persecution, it denied asylum eligibility because the persecution was not “on account of’ the petitioner’s imputed political opinion or membership in a particular social group, that group being her family. Bhasin, 423 F.3d at 982. The BIA affirmed, finding that “other close members of the [petitioner’s] family are living in India without difficulty. The [Islamic militant group] has not persecuted the respondent’s brother, two daughters, or one daughter-in-law, the wife or her missing eldest son.” Id. In granting the petition for review, we held that “later-discovered evidence presented in the motion to reopen rebuts this critical finding.” Id. We explained that the petitioner presented new, previously unavailable evidence that her two daughters and son-in-law had received death threats, violent verbal threats, and had subsequently disappeared while the appeal before the Board" }, { "docid": "22720513", "title": "", "text": "they genuinely fear persecution by their government or forces that their government is unable or unwilling to control on account of a statutorily-protected ground. Id. The objective component is satisfied where credible, direct, and specific evidence in the record supports a reasonable fear of persecution. Id. Malty’s fear of the uncontrolled actions of Islamic militants suffices to meet the subjective component of the well-founded fear test. See Singh, 134 F.3d at 966 (an applicant’s credible testimony fulfills the subjective prong); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003). The evidence also appears to satisfy the objective component of the test. As in Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998), in which we found petitioners eligible for asylum, Malty has demonstrated a pattern and practice of persecution, including beatings, arrests, and threats, against his similarly situated family members. The attacks were perpetrated by militant anti-Christian groups that the government was either unwilling or unable to control. Furthermore, Malty’s father was threatened that Malty would be arrested if he returned to Egypt. We have held that an applicant who is specifically targeted for persecution has a well-founded fear. See, e.g., Melkonian, 320 F.3d at 1068-69. Finally, Malty has introduced evidence regarding recent, widespread persecution of Coptic Christians that supports his claim. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003) (explaining that the level of individualized targeting that a petitioner must show is decreased when he is a member of a mistreated group). A well-founded fear does not require proof that persecution is more likely than not; even a ten percent chance of persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). There is no question that Malty has demonstrated a reasonable likelihood of meeting this standard. Therefore, Malty has stated a pri-ma facie case for asylum based on changed circumstances in his country of nationality. III. Conclusion We grant the petition for review and remand to the BIA with instructions to reopen. REVERSED" }, { "docid": "22726859", "title": "", "text": "Notices to Appear by applying for political asylum, withholding of removal, and relief under the Convention Against Torture. Judge Hayward granted the petitioners asylum on March 24, 2000, citing a “pattern and practice” of persecution against ethnic Chinese in Indonesia. AR 60-61. The BIA disagreed with Judge Hayward’s “pattern and practice” assessment and reversed. AR 2-3. Sael timely petitioned for review. We have jurisdiction over Sael’s petition pursuant to 8 U.S.C. § 1252(a) (2004). Because the BIA issued a reasoned opinion after conducting its own review of the record, we review the BIA’s decision for substantial evidence. See Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). In doing so, we accept Sael’s testimony as true. See Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000) (“Where the BIA does not make an explicit adverse credibility finding, we must assume that the applicant’s factual contentions are true.”). II. In order to be eligible for asylum, Sael must establish that she is a refugee — a person unable or unwilling to return to Indonesia “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A) (1994)). “Persecution encompasses the infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive.” Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004) (internal quotation marks omitted). An asylum applicant’s well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999). An applicant “satisfies the subjective component by credibly testifying that she genuinely fears persecution.” Id. Sael satisfied this requirement with her credible testimony that she fears being hurt, raped or killed in Indonesia. AR 129. An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. In this" }, { "docid": "22720514", "title": "", "text": "We have held that an applicant who is specifically targeted for persecution has a well-founded fear. See, e.g., Melkonian, 320 F.3d at 1068-69. Finally, Malty has introduced evidence regarding recent, widespread persecution of Coptic Christians that supports his claim. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003) (explaining that the level of individualized targeting that a petitioner must show is decreased when he is a member of a mistreated group). A well-founded fear does not require proof that persecution is more likely than not; even a ten percent chance of persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). There is no question that Malty has demonstrated a reasonable likelihood of meeting this standard. Therefore, Malty has stated a pri-ma facie case for asylum based on changed circumstances in his country of nationality. III. Conclusion We grant the petition for review and remand to the BIA with instructions to reopen. REVERSED and REMANDED. . The BIA declined to exercise its discretionary authority to grant the motion sua sponte. We do “not have jurisdiction to review the BIA's refusal to reopen deportation proceedings sua sponte.\" Ekimian v. INS, 303 F.3d 1153, 1160 (9th Cir.2002). Although the BIA discusses some of its reasons for its decision not to reopen when explaining its refusal to grant a sua sponte motion, we treat all of its reasons as equally pertinent to its denial of Malty’s motion to reopen, which it denied essentially on the ground that he failed to demonstrate changed country circumstances. . Although the statute and regulation refer to “affidavits,” we have treated affidavits and declarations interchangeably for purposes of motions to reopen, see, e.g., Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.2002), as well for purposes of BIA proceedings generally. See, e.g., Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1118 (9th Cir.2004); Vera-Villegas v. INS, 330 F.3d 1222, 1226 (9th Cir.2003); Gafoor v. INS, 231 F.3d 645, 654" } ]

[ { "docid": "22652008", "title": "", "text": "§ 1255(a) (2002). Indeed, the INS commendably conceded at oral argument that apart from a few formalities that needed to be carried out, if the hearing had been held, Singh would not have been ordered deported. The IJ, however, denied Singh’s motion to reopen and rescind the deportation order. The BIA denied his appeal with a conclusory statement that there were not exceptional circumstances as required by 8 U.S.C. § 1252b(c)(3)(A) (1994). He appeals the BIA’s decision claiming that his is the exceptional case, and we agree. We review the BIA’s decision for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). We will reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). A petitioner is entitled to reeission of a deportation order issued in absentia by filing a motion to reopen within 180 days of the date of the order of removal and by demonstrating that “exceptional circumstances” were the cause of the failure to appear. 8 U.S.C. § 1252b(c)(3)(A) (1994). “Exceptional circumstances” is defined by statute as “exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. § 1252b(f)(2) (1994). The INS contends that failing to attend a hearing on a claim of mistake is not an exceptional circumstance because it hap pens frequently. Both of the cases on which it relies, and where we held exceptional circumstances did not exist, were cases in which the petitioners were not, as Singh is, the beneficiary of an approved visa petition. Those petitioners were merely seeking to delay the inevitable. See Singh-Bhathal v. INS, 170 F.3d 943, 944 (9th Cir.1999); Sharma, 89 F.3d at 546. In Singh-Bhathal, the petitioner was taken into INS custody after entering the United States illegally. 170 F.3d at 944. He was released on bail and was sent a notice that he was to appear at a deportation hearing. He did not appear" } ]

[ { "docid": "23524554", "title": "", "text": "its enactment. Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). In 2000, in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (“St. Cyr I ”), our Court further limited the sweep of AEDPA and IIRIRA. We concluded that the Acts’ restrictions on discretionary relief imposed retroactive consequences on those who had pled guilty prior to the laws’ enactment. Id. at 418. A retroactive effect of this sort, we held, was only permitted under Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), if Congress clearly intended it. St. Cyr I, 229 F.3d at 413. Finding no such intent in the statutes, we ruled that the relevant aliens were potentially eligible for § 212(c) relief. Id. at 420. St. Cyr was subsequently affirmed by the Supreme Court. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“St. Cyril”). Following the decisions in Henderson and St. Cyr I and II, many aliens who had been denied the opportunity to apply for § 212(c) relief under Soriano or Yeung petitioned the Board of Immigration Appeals (“the BIA” or “the Board”) to reopen their immigration proceedings. In addition, the BIA itself, sua sponte, reopened the proceedings of some aliens, who now appeared to be eligible for § 212(c) relief. The Petitioners are among those who sought, or were sua sponte granted, reopening of their immigration proceedings after Henderson or St. Cyr. B. Anthony Milton Edwards i. 'Facts Petitioner Anthony Milton Edwards (“Edwards”) entered the United States as a lawful permanent resident in 1986. Pri- or to his incarceration on the charges forming the underlying basis for his deportation order, he was lawfully employed for many years, and served in the United States military. Petitioner Edwards has strong family ties in the United States, with both of his parents, as well as all of his siblings, residing .here. Edwards was arrested on' August 4, 1992 on drug-related charges. On October 26, 1992, he pleaded guilty to, and was convicted of, attempted criminal sale of a controlled substance in the third degree." }, { "docid": "23632409", "title": "", "text": "of a lawful permanent resident under § 245(a) ... because his drug conviction renders him inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)”), overruled on other grounds, Aguirre v. INS, 79 F.3d 315 (2d Cir.1996). In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court, affirming this Court’s decision in the same case, 229 F.3d 406 (2d Cir.2000), held that certain 1996 changes to the immigration laws that would significantly alter the above analysis do not apply retroactively to petitioners such as Drax who pleaded guilty prior to the effective date of the changes. See St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271 (affirming St. Cyr, 229 F.3d at 421). In particular, the Supreme Court held that Congress’s April 24,1996 enactment of § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996), which severely curtailed the availability of § 212(c) relief, and its subsequent enactment of § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, Div. C, Title III, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996), which eliminated § 212(c) relief altogether, do not operate retroactively to bar § 212(c) relief to petitioners such as Drax. St. Cyr, 533 U.S. at 297-98, 121 S.Ct. 2271. III. Proceedings Before the Immigration Judge and the BIA In January 1997, the Immigration and Naturalization Service (“INS”) commenced deportation proceedings against Drax by Order to Show Cause. In July 1997, Drax appeared pro se before an Immigration Judge, admitted his two convictions, and was found deportable. Drax I, at 4. At this appearance, Drax asked the Immigration Judge if he was “qualified for any type of a waiver” of deportation. Id. The Immigration Judge, ruling several years prior to our decision or the Supreme Court’s decision in St. Cyr, erroneously informed Drax that no relief from deportation was available to him under § 212(c) for his drug conviction because the restrictions in AEDPA § 440(d) applied retroactively to bar any such relief. He" }, { "docid": "16447489", "title": "", "text": "which repealed § 212(c) altogether. See St Cyr, 229 F.3d at 411. IIRIRA replaced § 212(c) relief with a form of relief called “cancellation of removal,” which allows the Attorney General to cancel removal proceedings for certain resident aliens, excluding those convicted of an aggravated felony. IIRIRA § 304(b); see INA § 240A(a), 8 U.S.C. § 1229b(a). In INS v. St Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which upheld our decision in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), the Supreme Court held that Congress’s repeal of § 212(c) did not apply to aliens who had entered into plea agreements prior to the repeal, where the agreements served to preserve the aliens’ eligibility for § 212(c) relief. The Court found that there was a “significant likelihood” that eligible aliens would be granted § 212(c) relief prior to IIRIRA, and that they “almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial” by agreeing to sentences that would preserve their eligibility for § 212(c) relief. St. Cyr, 533 U.S. at 325, 121 S.Ct. 2271. The Court determined that “it surely would be contrary to ‘familiar considerations of fair notice, reasonable reliance, and settled expectations,’ to hold that IIRIRA’s subsequent restrictions deprive them of any possibility of such relief.” Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (internal citation omitted). We recently held in Rankine, 319 F.3d at 102, that the repeal of § 212(c) relief does not have an impermissibly retroactive effect when applied to aliens who were convicted at trial rather than pursuant to a plea. Id. at 102. Applying Rankine to this case, the District Court held that petitioner was not entitled to seek § 212(c) relief. The District Court rejected petitioner’s argument, which he reiterates on appeal, that Rankine does not apply to his case because he, unlike the aliens in Rankine, “detrimentally relied” on the availability of § 212(c) in choosing to reject a plea deal and proceed" }, { "docid": "22794195", "title": "", "text": "898 F.2d 849, 850-51 (2d Cir.1990) (per curiam), so that the court could consider Theodoropoulos’s assertion that retroactive application of the IIRIRA provision repealing § 212(c) — and eliminating the possibility of discretionary relief from deportation for someone like Theodoropou-los — violated his due process rights. The R & R advised the district court to deny the INS’s motion to dismiss and to grant Theodoropoulos’s habeas petition to the extent of remanding the case to the BIA for review in light of this court’s decision in St. Cyr v. INS, 229 F.3d 406, 421 (2d Cir.2000) (“St. Cyr I”), which held that the repeal of § 212(c) by IIRIRA does not apply to aliens who pled guilty or nolo contendere prior to the enactment of IIRI-RA. The INS filed objections to the magistrate’s R & R arguing that St. Cyr I did not apply to aliens who, like Theodoropou-los, were convicted after a jury trial. Despite the INS’s objections, the district court, without correcting the magistrate’s erroneous factual finding, adopted the R & R, denied the motion to dismiss, and granted Theodoropoulos’s petition for the limited purpose of remanding the case to the BIA for further proceedings in line with the Supreme Court’s intervening affirmation of St. Cyr. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“St. Cyr II”). The INS filed a timely notice of appeal. Before this court, the INS renews its argument that the district court did not have jurisdiction to review Theodoropou-los’s petition for habeas corpus because (1) Theodoropoulos orally waived his right to appeal the IJ’s decision; (2) under 8 U.S.C. § 1252(d), Theodoropoulos was required to exhaust his administrative remedies before seeking review in federal court; (3) there are no exceptions to this statutory exhaustion requirement; (4) even if there was an exception for futility, it would not apply because appeal to the BIA would not have been futile; and (5) even if § 1252(d)’s administrative exhaustion requirement is inapplicable to habeas petitions, a judicially created exhaustion requirement exists and no constitutional exception to that requirement would" }, { "docid": "16447487", "title": "", "text": "the United Kingdom and its colonies, and was, until recently, a lawful permanent resident of the United States, having entered in 1970. In 1990, defendant was convicted of second-degree burglary and unlawful possession of marijuana, in violation of Sections 140.25 and 221.05 of the New York Penal Code. He was sentenced to an indeterminate term of three to nine years’ imprisonment, and served fewer than four years. On August 11, 1999, the Immigration and Naturalization Service issued a Notice to Appear, charging him with being removable from the United States as an alien convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) . On April 3, 2000, an immigration judge found petitioner removable as charged, and issued an order of removal. The immigration judge found petitioner ineligible for a waiver of deportation hearing pursuant to former § 212(c) of the INA, on the ground that § 212(c) had been repealed by the enactment of IIRIRA, effective April 1, 1997. The Board of Immigration Appeals dismissed petitioner’s appeal on October 26, 2000. On November 17, 2000, petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2241, in the District Court. In an order dated April 22, 2003, the District Court denied the petition. Petitioner filed a Notice of Appeal on May 5, 2003. On or about August 25, 2003, petitioner was deported. Petitioner’s claim on appeal involves his eligibility to seek a discretionary waiver of removal pursuant to former § 212(c) of the INA. We have described the history of § 212(c) relief in St. Cyr v. INS, 229 F.3d 406, 410-12 (2d Cir.2000), aff'd, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Section 212(c), formerly codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents. See St. Cyr, 229 F.3d at 410. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, § 440(d) of which limited eligibility for relief under § 212(e), and later that year Congress enacted IIRIRA, § 304(b) of" }, { "docid": "22181871", "title": "", "text": "not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation.” Id. at 1040 (citations omitted). Unlike Singh, Valencia-Fragoso made no showing that her circumstances are exceptional within the meaning of 8 U.S.C. § 1229a(e)(1). Moreover, she acknowledged at oral argument that, at best, were her case reopened she might hope for a discretionary grant of voluntary departure. Her case is akin to Sharma, where, as we stated in Singh, “[t]he petitioners’ only possibility of relief from deportation in that case was a discretionary grant of asylum.” Finally, Valencia-Fragoso argues that the in absentia removal order violates her due process rights. We disagree. It is well settled that “[i]f an alien is provided proper written notice of a removal hearing and fails to attend, the immigration judge is required to enter an in absentia order of removal.” Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). The IJ did not violate Valencia-Fragoso’s due process rights by following this rule. Sharma, 89 F.3d at 548 (noting that “[t]he IJ did not deny Petitioners due process by proceeding with the hearing in Petitioners’ absence.”). DENIED." }, { "docid": "22378128", "title": "", "text": "reviewing a district court’s decision to deny a habeas petition, Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir.2003). The conversion, however, changes the decision we review, and we now review the BIA’s decision, not the district court’s orders. II. Alvarez-Barajas’ Eligibility for INA § 212(c) Relief Having determined that we have jurisdiction to review Alvarez-Barajas’ petition, we turn to the merits of his petition. In light of the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), Alvarez-Ba-rajas challenges the BIA’s conclusion that he is ineligible for relief under the former INA § 212(c). But Alvarez-Barajas’ case is factually distinct from St. Cyr’s in two ways. First, unlike St. Cyr, under the state of the law at the time Alvarez-Bara-jas pled guilty, the offense to which he pled was not an aggravated felony, and therefore, was not a deportable offense. Second, by the time Alvarez-Barajas pled guilty to this crime, the law had already changed to make all aliens convicted of aggravated felonies ineligible for relief. Because we find that these factual distinctions are significant, we affirm the BIA’s conclusion that Alvarez-Barajas is ineligible for § 212(c) relief. First, we reject Alvarez-Barajas’ argument that § 321 of the IIRIRA, which expanded the aggravated felony definition, cannot be applied retroactively to him because the Supreme Court has indicated otherwise in St. Cyr. 533 U.S. at 318-19, 121 S.Ct. 2271. In holding that Congress did not clearly intend for a different section of the IIRIRA to apply retroactively, the Court contrasted this section with § 321(b), which the Court found unambiguously applied retroactively. Id. (“IIRIRA’s amendment of the definition of ‘aggravated felony,’ for example, clearly states that it applies with respect to ‘conviction[s] ... entered before, on, or after’ the statute’s enactment date.”); see also Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th Cir.2000) (holding that Congress “clearly manifested an intent for the amended definition of aggravated felony to apply retroactively”). Because, with respect to this section of the IIRIRA, Congress has satisfied the “demanding” standard for making a law unambiguously retroactive," }, { "docid": "12053870", "title": "", "text": "relief under that section. In assessing the effect of IIRIRA on petitioner’s claim, the BIA mistakenly focused on the date of petitioner’s 1998 criminal conviction for petit larceny, rather than the date on which petitioner’s deportation proceeding began. The BIA concluded that, although petitioner “remains eligible for section 212(c) relief with respect to his 1992 convictions, the repeal of section 212(c) of the Act prior to his 1998 conviction precludes him from such relief with respect to that conviction.” In re Garcia-Padron, [ AXX XXX XXX ], at 2 (B.I.A. Mar. 20, 2008). On its face, however, the plain language of IIRIRA section 309(c)(1) is concerned only with the date on which a petitioner’s deportation proceeding was initiated. The statute instructs that if that date is before April 1, 1997, the amendment repealing section 212(c) “shall not apply.” IIRIRA § 309(c). We are compelled to identify error in the BIA’s focus on the date of petitioner’s post-IIRIRA conviction and in its failure to follow Congress’s instruction to apply pre-IIRIRA law to claims like Garcia-Padron’s. The regulatory provision at 8 C.F.R. § 1212.3(h), which provides that “[ajliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial,” is not to the contrary. Section 1212.3(h) went into effect on October 28, 2004, and was promulgated to implement the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1, 1997 (“212(c) Relief for Aliens”), 69 Fed.Reg. 57,826, 57,826 (Sept. 28, 2004). As is clear from the title of the rule and the decision in St. Cyr, § 1212.3(h) addresses the retroactivity problem created when a petitioner has pleaded guilty to a crime prior to IIRI-RA’s effective date of April 1, 1997, and has deportation proceedings instituted against him after that date. See INS v. St. Cyr, 533 U.S. at 293, 121 S.Ct. 2271 (describing petitioner who pleaded guilty to selling controlled substance before 1996 amendments and whose removal proceedings were" }, { "docid": "22081725", "title": "", "text": "It also expanded the definition of “aggravated felony” by reducing the prison sentence required to trigger aggravated-felony status from five years to one year. See IIRIRA § 321(a)(3), 110 Stat. 3009-627, codified at 8 U.S.C. § 1101(a)(43)(F) (2001). At the time of Gonzalez’s deportation hearing, the BIA had taken the position that the newly-added 1996 restrictions on § 212(c) relief applied to aliens who had committed a crime prior to their enactment. See In re Soriano, 21 I & N Dec. 516 (BIA 1996). However, in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that “ § 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326, 121 S.Ct. 2271. Because St. Cyr pled guilty to a deportable offense at a time when § 212(c) relief was available, such relief remained available to him notwithstanding the later repeal of that section. Id. B. The Challenge to the Deportation Order The INA provides for criminal penalties for aliens who re-enter without permission after deportation. 8 U.S.C. § 1326(a)-(c). A collateral attack on the underlying deportation can succeed where the alien shows that his due process rights were violated in his deportation proceeding and that he suffered prejudice as a result of such violation. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). Gonzalez argues that his due process rights were violated because the IJ failed to inform him of his right to petition for relief under former § 212(c). The duty of the IJ to inform an alien of his eligibility for relief is mandatory, and the failure to do so constitutes a violation of the alien’s due process rights. United States v. Muro-Inclan, 249 F.3d 1180, 1183-84(9th Cir.2001). Here, however, we need not address whether the IJ adequately informed Gonzalez of the availability of relief under § 212(c) because, even assuming that he did not, Gonzalez cannot" }, { "docid": "22932100", "title": "", "text": "OAKES, Senior Circuit Judge. These cases, which we address in tandem, raise the issue whether Congress’s repeal of discretionary waivers of deportation has an impermissible retroactive effect when applied to aliens who were convicted at trial before the date of the repeal. In St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), which the Supreme Court upheld in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), we found that an impermissible retroactive effect did exist with respect to aliens who had entered into plea agreements prior to the repeal of discretionary relief because the aliens relied on such relief in their decisions to plead guilty. The petitioners here urge us to extend the reasoning of St. Cyr beyond plea agreements to cases such as theirs, in which they chose to proceed to trial and were convicted. Because we find that petitioners did not detrimentally rely on the availability of discretionary relief when exercising their right to trial, we affirm the decisions of the United States District Court for the Southern District of New York, Andrew J. Peck, Mag. Judge, and the United States District Court for Western District of New York, William M. Skretny, Judge. BACKGROUND As we are resolving the appeals of several petitioners, we address the facts of each of their cases in turn. Initially, we review the statutory history of the discretionary relief provisions applicable to resident aliens. I. Statutory History The statutory history of discretionary relief from deportation is complex, and is set forth fully in our opinion in St. Cyr. 229 F.3d at 410-12. To summarize briefly here, the deportation of resident aliens who commit aggravated felonies is controlled by the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(2)(A)(iii) (2001). Prior to 1997, aliens deportable under the INA could apply to the Attorney General for a discretionary waiver of deportation pursuant to § 212(c) of the INA. To qualify for such relief, an alien was required to show that he (1) was a lawful permanent resident of the United States, (2) had an unrelin-quished domicile of seven" }, { "docid": "12053871", "title": "", "text": "regulatory provision at 8 C.F.R. § 1212.3(h), which provides that “[ajliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial,” is not to the contrary. Section 1212.3(h) went into effect on October 28, 2004, and was promulgated to implement the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1, 1997 (“212(c) Relief for Aliens”), 69 Fed.Reg. 57,826, 57,826 (Sept. 28, 2004). As is clear from the title of the rule and the decision in St. Cyr, § 1212.3(h) addresses the retroactivity problem created when a petitioner has pleaded guilty to a crime prior to IIRI-RA’s effective date of April 1, 1997, and has deportation proceedings instituted against him after that date. See INS v. St. Cyr, 533 U.S. at 293, 121 S.Ct. 2271 (describing petitioner who pleaded guilty to selling controlled substance before 1996 amendments and whose removal proceedings were commenced after both AEDPA and IIRIRA became effective). St. Cyr was concerned only with the reliance interest of aliens who had pleaded guilty under the pre-AEDPA/IIRIRA regime. See id. at 323, 121 S.Ct. 2271 (“Given the frequency with which [section] 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” (footnote omitted)). Consequently, § 1212.3(h) merely codifies the corollary rule that an alien who chose not to plead, but instead elected to go to trial under the pre-AEDPA/IIRI-RA regime, was not entitled to assert the reliance interest identified in St. Cyr. See, e.g., Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.2003) (reasoning that, unlike the petitioner in St. Cyr, “those aliens who went to trial prior to the elimination of [section] 212(c) relief cannot show that they altered their conduct in reliance on the availability of such relief,” and holding accordingly" }, { "docid": "22181869", "title": "", "text": "Immigration Appeals (“BIA”) affirmed. She now petitions for review. Valencia-Fragoso argues that the IJ erroneously entered an in absentia removal order because she did not fail to appear at the hearing. We disagree. The hearing was scheduled for 8:30 a.m. and Valencia-Fragoso did not appear. In fact, she was four and one-half hours late. In these circumstances, she did indeed “fail to appear.” See Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999) (citing Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996) for the proposition that an alien who arrives forty-five to sixty minutes late has failed to appear). Valencia-Fragoso’s four and one-half hour tardy appearance, coupled with a lack of any showing that the IJ was still on the bench hearing cases, distinguishes this case from Jerezano, 169 F.3d at 615 (concluding that “[w]hile an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short-as in this case [ (20 minutes) ]-it is an abuse of discretion to treat a slightly late appearance as a nonappearance.”). We conclude that Valencia-Fragoso failed to appear for her scheduled removal hearing. We next consider whether she has demonstrated “exceptional circumstances” to justify reopening the proceedings notwithstanding her nonappearance. “Exceptional circumstances” are defined by statute as “circumstances (such as serious illness of the alien ..., but not including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). Valencia-Fragoso argues that, like the alien in Singh, she reasonably misunderstood the time for her July 1 hearing. See Singh, 295 F.3d at 1039-40. Singh, however, involved a crucial and determinative circumstance which is not present in Valencia-Fragoso’s case. Although we observed that “Singh could have easily misunderstood the time of’ his hearing, and, like Valencia-Fragoso had faithfully appeared on time for previous hearings, Singh, at the time of his hearing, was the beneficiary of an approved visa petition. The INS conceded that he would not have been deported if his hearing had been held. Emphasizing the importance of this circumstance, we stated that “the INS should" }, { "docid": "19722006", "title": "", "text": "Weil v. Markowitz, 829 F.2d 166, 175 (D.C.Cir.1987)). We have not previously decided whether the doctrine of nunc pro tunc is available as a means of providing equitable relief where the BIA is divested of jurisdiction by the departure bar to consider an alien’s motion to reopen. To our knowledge, the BIA has not expressed a view on this question, either. Nevertheless, we need not resolve that issue in this case. Even assuming, arguendo, that the departure bar does not foreclose equitable relief, petitioner has not demonstrated that a nunc pro tunc remedy is warranted. Petitioner relies principally on Edwards v. INS. There, the BIA denied three aliens an opportunity to apply for “ § 212(c) relief,” i.e., a waiver of deportation, based on an interpretation of the INA that we later deemed to be legally erroneous, see St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir.2000), aff'd 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). See Edwards, 393 F.3d at 303-06. After the BIA erroneously denied the § 212(c) relief, each petitioner accrued more than five years’ imprisonment, which rendered them independently ineligible for the waiver under the INA as it existed at the time. See id. at 307 (citing 8 U.S.C. § 1182(c) (1994) (repealed 1996)). Following the decisions in Henderson and St. Cyr, the Edwards petitioners asked the BIA to reopen their immigration proceedings and to reconsider whether they were eligible for § 212(c) relief. See id. at 303. These applications were denied, however, on the alternative basis that each petitioner had been incarcerated for more than five years. See id. at 303-06. In Edwards, we rejected the application of the INA’s five-year bar and concluded that, under the doctrine of nunc pro tunc, the petitioners were entitled to apply for § 212(c) relief based on the facts as they existed at the time of their initial, erroneously denied applications. See id. at 312. We held that “an award of nunc pro tunc relief [should] ordinarily be available where agency error would otherwise result" }, { "docid": "6285338", "title": "", "text": "been brought to the BIA’s attention by her motion to reconsider, the BIA should have corrected the error. We therefore hold that the BIA abused its discretion in denying petitioner’s motion to reconsider. The petition for review is granted, and the matter is remanded to the BIA with instructions to remand this case to the immigration court with instructions to permit petitioner a reasonable opportunity to file a motion to reopen in that court. . Although § 212(c) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(c) (1994), has been repealed, the government does not contend that petitioner is ineligible for a discretionary waiver on that basis. According to the government, under the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), aliens in removal proceedings may, in some circumstances, \"still be eligible for waiver of deportation pursuant to INA § 212(c), despite its repeal in 1999.” Brief for Respondent at 7 n. 3. . Because the underlying exclusion proceedings commenced before April 1, 1997, and concluded after October 30, 1996, our review of the BIA's order is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Fisher v. INS, 291 F.3d 491, 496 (8th Cir.2002). Under those transitional rules, petitioner had 30 days from the date of the final order of exclusion or deportation in which to file her notice of petition for review. See, e.g., Ibrik v. INS, 108 F.3d 596, 597 (5th Cir.1997) (per curiam) (explaining operation of transitional rules with respect to time in which to file petition for review). . The thirtieth day after the denial of the motion to reconsider fell on a Saturday. Consequently, the relevant date for filing purposes was the following Monday, January 13, 2003. See Fed. R.App. P. 26(a)(3)." }, { "docid": "6555182", "title": "", "text": "and fair hearing guaranteed to him by the Constitution. Where fairly possible, we construe statutes to avoid such concerns. See INS v. St. Cyr, 533 U.S. 289, 308-09, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Romero v. INS, 39 F.3d 977, 981 (9th Cir.1994). In resolving this conundrum, we are guided by the Supreme Court’s decision in St. Cyr. In St. Cyr, the Court considered whether the 1996 amendments to the INA found in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and the IIRIRA stripped the courts of habeas jurisdiction under § 2241. 533 U.S. at 300-08, 121 S.Ct. 2271. Following a detailed review of the purpose and history of habeas jurisdiction, the court turned to the relevant provisions of the AEDPA and the IIRIRA and held that in the absence of a judicial forum in which to answer a question of law, and a lack of a “clear, unambiguous, and express statement of judicial consideration on habeas of such an important question of law in the statute,” the AEDPA and the IIRIRA had not repealed habeas jurisdiction under § 2241. Id. at 314, 121 S.Ct. 2271. In Smith, the Fourth Circuit Court of Appeals, applying the reasoning in St. Cyr, determined that § 241(a)(5) did not preclude habeas jurisdiction where the petitioner’s challenge to the reinstatement order implicated the validity of a prior removal order. See 295 F.3d at 428-29; see also St. Cyr, 533 U.S. at 314, 121 S.Ct. 2271 (“The absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas ....”); Avila-Macias, 328 F.3d at 110 (holding that the petitioner could not collaterally attack the underlying deportation order on direct review from the reinstatement order but recognizing that he “may be able to collaterally attack the underlying deportation order elsewhere”); Briones-Sanchez v. Heinauer, 319 F.3d 324, 328 (8th Cir.2003) (recognizing that the petitioner subject to a reinstatement order could challenge the fundamental fairness of his prior removal proceeding in a habeas petition). The Smith court further recognized that if" }, { "docid": "2663958", "title": "", "text": "if he were a non-LPR, he lacks standing to raise this challenge. Garcia-Echaverria also argues that denying him the opportunity to apply for a waiver of deportation pursuant to § 212(c) of the INA had an impermissible retroactive effect because he committed his Kentucky drug offense prior to the repeal of that provision by the IIRIRA. It is true that INS v. St. Cyr, 533 U.S. 289, 321-22, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), held that denying some aliens the opportunity to apply for a waiver of deportation pursuant to § 212(c) of the INA has an impermissible retroactive effect. St. Cyr held that denying the opportunity to apply for § 212(c) relief to aliens who had pleaded guilty in reliance upon the opportunity to apply for such relief would disrupt the quid pro quo of plea bargaining. Id. at 321-24, 121 S.Ct. 2271. By the time Garcia-Echaverria committed his Kentucky drug offense on May 31, 1996, and certainly by the time he pleaded guilty on December 16, 1996, § 440(d) of the AEDPA made him ineligible for a discretionary waiver of deportation. AEDPA, Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (1996); 8 U.S.C. § 1227(a)(2)(A)(iii) and (B). St. Cyr aids only those aliens whose “convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for [discretionary cancellation of removal] at the time of their plea under the law then in effect.” 533 U.S. at 326, 121 S.Ct. 2271 (emphasis added). Because he pleaded guilty and became ineligible for a waiver of deportation after the AEDPA was enacted on April 24, 1996, denying Garcia-Echaverria relief from deportation/removal does not raise any retroactivity concerns. Although Garcia-Echaverria was convicted pursuant to a guilty plea prior to the effective date of the IIRIRA, he could not have pleaded guilty in reliance on his ability to obtain a discretionary cancellation of removal because under the AEDPA he was not eligible for relief at the time he pleaded guilty. IV. CONCLUSION For the forgoing reasons, we AFFIRM the district court’s denial of Garcia-Echav-erria’s petition for a writ of" }, { "docid": "22746764", "title": "", "text": "not a “failure to appear” case because the Romanis were where they were supposed to be on time. 146 F.3d at 738. Perez was not, nor was he misdirected. This case is far closer to Sharma, where the aliens arrived at the hearing between 45 minutes and 1 hour late due to traffic congestion and trouble finding a place to park. We concluded that these were not “exceptional circumstances” under 8 U.S.C. § 1252b(c)(3). Although we did not explicitly consider whether delay of this order of magnitude was a “failure to appear,” implicitly it was, for otherwise we would not have reached the issue of exceptional circumstances. See also Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir.2003) (holding that a four and one-half hour tardy appearance was a failure to appear). Assuming that a little wiggle room is appropriate, the majority abandons Jere-zano’s tether to short delay and instead founds its new rule on a “late” arrival for an immigration hearing “while the IJ is still in the courtroom.” In this, it also jettisons the other lynchpin in Jerezano, that the IJ be still in the courtroom hearing cases when the alien arrives. And it takes no account of the fact that Perez’s late appearance was in form only; by then, Perez was in no position to respond on the merits because he was so late even his lawyer was no longer there. Actually, Perez had no evident hope of succeeding on the merits. His papers suggest no reason why he should not be deported. So the decision here also departs from Singh v. INS, 295 F.3d 1037 (9th Cir.2002). There, we held that the BIA abused its discretion in refusing to reopen a case where the petitioner was two hours late, missed his hearing, and “denial [would have led] to the unconscionable result of deporting an individual eligible for relief from deportation.” Id. at 1039-40. We found Singh’s case exceptional because the petitioner “had no possible reason to try to delay the hearing.” Id. at 1040. Petitioners without a shot at success, on the other hand, have every reason" }, { "docid": "16447488", "title": "", "text": "17, 2000, petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2241, in the District Court. In an order dated April 22, 2003, the District Court denied the petition. Petitioner filed a Notice of Appeal on May 5, 2003. On or about August 25, 2003, petitioner was deported. Petitioner’s claim on appeal involves his eligibility to seek a discretionary waiver of removal pursuant to former § 212(c) of the INA. We have described the history of § 212(c) relief in St. Cyr v. INS, 229 F.3d 406, 410-12 (2d Cir.2000), aff'd, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Section 212(c), formerly codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents. See St. Cyr, 229 F.3d at 410. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, § 440(d) of which limited eligibility for relief under § 212(e), and later that year Congress enacted IIRIRA, § 304(b) of which repealed § 212(c) altogether. See St Cyr, 229 F.3d at 411. IIRIRA replaced § 212(c) relief with a form of relief called “cancellation of removal,” which allows the Attorney General to cancel removal proceedings for certain resident aliens, excluding those convicted of an aggravated felony. IIRIRA § 304(b); see INA § 240A(a), 8 U.S.C. § 1229b(a). In INS v. St Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which upheld our decision in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), the Supreme Court held that Congress’s repeal of § 212(c) did not apply to aliens who had entered into plea agreements prior to the repeal, where the agreements served to preserve the aliens’ eligibility for § 212(c) relief. The Court found that there was a “significant likelihood” that eligible aliens would be granted § 212(c) relief prior to IIRIRA, and that they “almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial” by agreeing to sentences that would preserve their eligibility for" }, { "docid": "22132329", "title": "", "text": "discretion. The Supreme Court and the Ninth Circuit have both held that the repeal of judicial review of final deportation orders does not affect the court’s jurisdiction to review such orders under the general ha-beas statute, 28 U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 307-08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.1999). Although I agree with the majority that St. Cyr offers no definitive resolution to the scope of habeas review, 533 U.S. at 298, 121 S.Ct. 2271, it counsels against total abdication of jurisdiction to review discretionary determinations for egregious abuse. The court specifically discussed “the historical use of habeas corpus to remedy unlawful executive action,” including arguments that habeas applies to claims of “the improper exercise of official discretion.” 533 U.S. at 303-04, 121 S.Ct. 2271. The Court ultimately concluded that in St. Cyr’s case, only “pure questions of law” were at issue. St. Cyr’s claim — that the INS had incorrectly decided that he was statutorily ineligible for discretionary relief — did not necessitate abuse of discretion review. Id. at 304-05, 121 S.Ct. 2271. I would heed the Court’s mandate and turn to the historical scope of § 2241 habe-as corpus review for guidance on this question. As we have previously explained, “[e]laims of ... abuse of discretion in the application laws have long been cognizable on habeas corpus.” Ma v. Ashcroft, 257 F.3d 1095, 1101 n. 4 (9th Cir.2001). The import of this statement is unmistakable. We also earlier noted § 2241 habeas jurisdiction to review of the denial of § 212(c) discretionary relief from deportation in Sotelo Mondragon v. Ilchert, 653 F.2d 1254, 1256-57 (9th Cir.1980) (the court noted jurisdiction both under § 2241 and the now-repealed § 106). Claims of abuse of discretion have always been considered claims that an official violated a statute, and thus that the petitioner is being held “in violation of the ... laws ... of the United States.” 18 U.S.C. § 2241(c)(3). The Supreme Court specifically noted that “under the pre-1952 regime which provided only what Heikkila" }, { "docid": "22181870", "title": "", "text": "a slightly late appearance as a nonappearance.”). We conclude that Valencia-Fragoso failed to appear for her scheduled removal hearing. We next consider whether she has demonstrated “exceptional circumstances” to justify reopening the proceedings notwithstanding her nonappearance. “Exceptional circumstances” are defined by statute as “circumstances (such as serious illness of the alien ..., but not including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). Valencia-Fragoso argues that, like the alien in Singh, she reasonably misunderstood the time for her July 1 hearing. See Singh, 295 F.3d at 1039-40. Singh, however, involved a crucial and determinative circumstance which is not present in Valencia-Fragoso’s case. Although we observed that “Singh could have easily misunderstood the time of’ his hearing, and, like Valencia-Fragoso had faithfully appeared on time for previous hearings, Singh, at the time of his hearing, was the beneficiary of an approved visa petition. The INS conceded that he would not have been deported if his hearing had been held. Emphasizing the importance of this circumstance, we stated that “the INS should not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation.” Id. at 1040 (citations omitted). Unlike Singh, Valencia-Fragoso made no showing that her circumstances are exceptional within the meaning of 8 U.S.C. § 1229a(e)(1). Moreover, she acknowledged at oral argument that, at best, were her case reopened she might hope for a discretionary grant of voluntary departure. Her case is akin to Sharma, where, as we stated in Singh, “[t]he petitioners’ only possibility of relief from deportation in that case was a discretionary grant of asylum.” Finally, Valencia-Fragoso argues that the in absentia removal order violates her due process rights. We disagree. It is well settled that “[i]f an alien is provided proper written notice of a removal hearing and fails to attend, the immigration judge is required to enter an in absentia order of removal.” Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). The IJ did not violate Valencia-Fragoso’s due process rights by following this rule. Sharma," } ]

[ { "docid": "22793404", "title": "", "text": "capacity must be recovered from his liability insurer or the public funds controlled by him or his successor in office. For purposes of “official capacity” suits under § 1983, the district attorney’s office resembles other local government entities. Therefore, we advert to the Supreme Court’s development of principles for determining whether a municipality or other local government entity should be held liable under 42 U.S.C. § 1983 for the constitutional tort of its employee. Title 42 U.S.C. § 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In Monell, the Supreme Court held that municipalities and other local government bodies are “persons” within the meaning of § 1983. Monell, 436 U.S. at 689, 98 S.Ct. 2018. The Court said that municipalities cannot be held liable for constitutional torts under § 1983 “on a respondeat superior theory,” id. at 691, 98 S.Ct. 2018, but they can be held liable “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. 2018. “[T]ortious conduct, to be the basis for municipal liability under § 1983, must be pursuant to a municipality’s ‘official policy’.... [This] requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur, 475 U.S. at 479, 106 S.Ct. 1292. In other words, “[t]he act of the municipality is the act only of an authorized policymaker or of an employee following the policymaker’s lead.” Bryan County Comm’r v." } ]

[ { "docid": "22599885", "title": "", "text": "York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court recognized that municipalities could be subjected to section 1983 liability if a deprivation of a federally protected right was caused by action taken “pursuant to official municipal policy of some nature_” Id. at 691, 98 S.Ct. at 2036. Thus, “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy inflicts the injury ... the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. at 2037. Subsequently, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Court examined the circumstances under which a decision by municipal policymakers on a single occasion could nevertheless satisfy the “official policy” requirement of Monell. The Pemb-aur Court noted, a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers, it surely represents an act of official government “policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly- 475 U.S. at 481, 106 S.Ct. at 1299 (footnote omitted). The touchstone for determining “official policy” is “distinguishpng] acts of the municipality from acts of employees of the municipality, and thereby mak[ing] clear that municipal liability is limited to action for which the municipality is actually responsible.” Id. at 479-80, 106 S.Ct. at 1298-99 (emphasis in original). The Court equated municipal responsibility with the actions of a “final policymaker”: “[Municipal liability under § 1983 attaches where— and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter" }, { "docid": "12821705", "title": "", "text": "teacher in Stro-man, never encouraged any disruptive conduct by her fellow teachers or in the school. IV. Finally, the District argues that the court below erred because it held the District “vicariously liable” for the violation of Hall’s First Amendment rights by Foil and Le-gette, neither of whom possessed final policy-making authority. The District analogizes this case to City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), and contends that because neither Foil nor Legette possessed final policymak-ing authority, it cannot be held liable for their unconstitutional actions. We disagree. In Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipality may not be held liable under § 1983 for an injury that was inflicted exclusively by its agents or employees. The Court stated: “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. Proof of the existence of a municipal policy or custom under § 1983 does not require a plaintiff to evidence numerous similar violations. Indeed, in Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986), the Supreme Court held that in certain circumstances, a single violation is sufficient to invoke municipal liability. The Court reasoned that to hold a municipality liable for a single violation, the decisionmaker must possess “final authority to establish municipal policy with respect to the action ordered.” Id. at 481, 106 S.Ct. at 1299 (footnote omitted). In Praprotnik, the Supreme Court further defined when a municipality can be held liable for a single constitutional violation. First, ... municipalities may be held liable under§ 1983 only for acts for which the municipality itself is actually responsible, “that is, acts which the municipality has officially sanctioned or ordered.” Second, only those municipal officials who have “final policymaking authority” may" }, { "docid": "22054406", "title": "", "text": "McGreevy also asserted a claim against the District as well as against Stroup and Soltis in their official capacities. The District Court held that the District was entitled to summary judgment because “plaintiff has failed to adduce evidence of any policy, practice, or custom of the Bermudian Springs School Board of Directors that violated her First Amendment rights.” App. at 25. The Court held that only the School Board was a final policymaker for purposes of § 1983. In Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court established that a municipality cannot be held liable under § 1983 for the constitutional torts of its employees by virtue of respondeat superior. Instead, a municipality may only be hable for the torts of its employees in one of three ways: First, the municipality will be liable if its employee acted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity, Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); second, liability will attach when the individual has policy making authority rendering his or her behavior an act of official government policy, Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); third, the municipality will be liable if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes, City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). For purposes of deciding the present appeal, we need focus only on the second method by which liability may attach. The Supreme Court’s decision in Pembaur makes clear that an official with policymaking authority can create official policy, even by rendering a single decision. As the Court stated in that case, “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” 475 U.S. at 480, 106 S.Ct. 1292. The Court further explained that the power to" }, { "docid": "473180", "title": "", "text": "entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”); Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.1993). Accordingly, the City’s defense of legislative immunity must be rejected. The remaining question is therefore whether municipal liability may be imposed. B. Municipal liability Pursuant to Section 1983, a municipality may not be held vicariously liable for the torts of its employees or agents, but may be held liable only for injuries inflicted pursuant to a municipal “policy or custom.” See Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Consonant with these principles, even where no municipal policy was formally adopted, liability may nonetheless arise from “a course of action tailored to a particular situation” by a municipal decision-maker, provided that “the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986) (plurality opinion). The Second Circuit has recently explained the application of these principles in considerable detail: Where the contention is not that the actions complained of were taken pursuant to a local policy that was formally adopted or ratified but rather that they were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular .area involved. It does not suffice for these purposes that the official has been granted discretion in the performance of his duties. Only those municipal officials who have final policymaking authority may by their ac tions subject the government to § 1983 liability. Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law. The relevant legal materials[ ] include state and local positive law, as well as custom or usage having the force of law. The matter of whether the official is a final policymaker under state law" }, { "docid": "2783132", "title": "", "text": "at 3, and thus the City of Chester should be dismissed as a defendant. Id. Defendants are correct that a governmental entity may not be held liable pursuant to § 1983 under the doctrine of responde-at superior. Monell v. Department of Social Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Andrews v. Philadelphia, 895 F.2d 1469, 1476 (3d Cir.1990). Rather, “section 1983 liability attaches to a municipality only when ‘execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.’” Andrews, 895 F.2d at 1480 (quoting Monell, 98 S.Ct. at 2037). “Policy is made when a ‘decisionmaker possessing] final authority to establish municipal policy with respect to the action’ issues an official proclamation, policy, or edict.” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986)). While the complaint does not allege that plaintiffs injuries resulted from “an official proclamation, policy, or edict,” it does allege that the individual defendants who personally took action on behalf of the City were its Mayor and Police Commissioner, and noting the obvious reality that they were “policymakers” of the City, Compl. at ¶¶ 5-6, a characterization the defendants do not dispute. Cf. Andrews, 895 F.2d at 1481 (finding that the “Police Commissioner was a policymaker”). “A single incident violating a constitutional right done by a governmental agency’s highest policymaker for the activity in question may suffice to establish an official policy.” Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.1989)(citing Pembaur, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (county attorney’s decision to have sheriffs enter premises established official policy)). Thus, the actions of the Chester Mayor and Police Commissioner, in allegedly twice prosecuting Johnson for disorderly conduct, may be regarded as policymaking actions attributable to the City of Chester. Therefore, the City of Chester is, at least at this point, a proper defendant in this action. C. Punitive Damages Although the City of Chester remains a defendant here, Johnson may" }, { "docid": "7265514", "title": "", "text": "on the part of defendant Galassi or the other defendants was done pursuant to official policy, custom, or usage, a predicate to municipal liability under Monell v. Dep’t of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Supreme Court in Monell rejected the theory of § 1983 municipal liability by virtue of the application of the doctrine of respondeat superior: We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38. Key to determining whether a municipality can be held liable under § 1983, then, is whether the injury complained of, here, invasion of privacy, resulted from “official policy” or “custom or usage.” The Court set out to clarify the meaning of “policy” in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986). Recognizing that a single act of municipal policymakers can give rise to § 1983 liability, the Court held that decisions by officials with “final authority to establish municipal policy with respect to the action ordered” will be deemed policy. Id. at 481, 106 S.Ct. at 1299. Authority to make municipal policy may be granted by legislative enactment or delegated by those who possess such authority, and whether an official has policymaking authority is a question of state law. Id. at 483, 106 S.Ct. at 1300; City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). Municipal custom, on the other hand, will arise where a course of conduct, though not formally approved through official channels, is so permanent and well settled as to virtually constitute law. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36 (quoting Adickes v. S.H." }, { "docid": "17252748", "title": "", "text": "local government to the offending employee; rather, “[rjecovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’' — -that is, acts which the municipality has officially sanctioned or ordered.” Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). In the instant case, plaintiffs allege that Clayton County School District is responsible for the unconstitutional searches of the students under three theories: (1) that assistant principal Roberts acted as a final policymaker when she authorized the searches of the students by Morgan and Billingslea; (2) that the school district failed to supervise or train its employees and condoned a policy of permitting searches- of students’ persons in violation of the Constitution; and (3) that the school district ratified the searches by “exonerating everyone and taking no corrective action.” (Pis.’ Br. [81] at 23.) The Court will address each theory in turn. 1. Municipal Liability Based on a Single Decision In Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court explained that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” See Scala 116 F.3d at 1399. Moreover, “where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is taken only once or to be taken repeatedly.” Pembaur, 475 U.S. at 481, 106 S.Ct. 1292. “Thus, liability may arise from ‘a course of action tailored to a particular situation and not intended to control decisions in later situations’ ... provided that ‘the de-cisionmaker possesses final authority to establish municipal policy with respect to the action ordered.’ ” Scala, 116 F.3d at 1399 (citations omitted) (quoting Pembaur, 475 U.S. at 481, 106 S.Ct. 1292). As long as the decisionmaker’s decision is final, the municipality can be held liable under § 1983. Id. at 1401; accord McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir.1996), aff'd, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). The determination of whether a municipal employee is the final decision-maker" }, { "docid": "22835626", "title": "", "text": "of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978), the Court held that municipalities and other local government units are “included among those persons to whom § 1983 applies.” Local governments may therefore be properly sued for “monetary, declaratory, or injunctive relief” when they commit a constitutional tort. Id. However, a local government is liable as an entity only when the government itself has committed the constitutional violation, not when the violation was committed by its employees. Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1985). As the Monell Court stated: [I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Monell, 436 U.S. at 694, 98 S.Ct. at 2037. The principle of respondeat superior, therefore, is inapplicable to § 1983 actions because § 1983 extends liability only to persons who “cause” constitutional violations, and municipalities do not “cause” constitutional violations solely by having employed a constitutional tortfeasor. Id. at 691-92, 98 S.Ct. at 2036. In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1985), the Supreme Court held that a municipality can be held liable under § 1983 for a single decision by the municipality’s policymakers. Id. at 479-80, 106 S.Ct. at 1298. However, the municipality is liable for an official’s unconstitutional action only when the official is the one who has the “final authority to establish municipal policy with respect to the action ordered.” Id. at 481, 106 S.Ct. at 1299 (plurality opinion). Mere authority to exercise discretion while performing particular functions does not make a municipal employee a final policymaker unless the official’s decisions are final and unreviewable and are not constrained by the official policies of superior officials. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988) (plurality opinion). Officials can derive their" }, { "docid": "8663745", "title": "", "text": "wide discretion as to the style and wording employed.” U.S. v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (citing McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir.1990)). On appeal, we examine whether the jury instructions, considered as a whole, were sufficient “so that the jurors understood the issues and were not misled.” Id. (quoting Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir.1991)). Y. ANALYSIS A. MUNICIPAL LIABILITY 1. Monell’s “Policy or Custom’’ Requirement In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Instead, municipalities may only be held liable for the execution of a governmental policy or custom. As the Monell Court explained: [I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly he said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38 (emphasis added). Later, in Pembaur v. City of Cincinnati 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), the Supreme Court clarified Monell’s “policy or custom” requirement. In Pembaur, the Court explained that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” 475 U.S. at 480, 106 S.Ct. at 1298 (emphasis added). In Praprotnik, a plurality of the Supreme Court held that “appointing authorities” who have authority to initiate personnel decisions are not municipal policymakers if those decisions are subject to meaningful administrative review. See 485 U.S. at 129-30, 108 S.Ct. at 927-28. Since Pembaur and Praprotnik, this Court’s decisions have consistently recognized and given effect to the principle that a municipal official does not have final policy-making authority over a particular subject matter when that official’s decisions are subject to" }, { "docid": "15452505", "title": "", "text": "989, 996 (11th Cir.1990). III. ANALYSIS A. MONELL’S “POLICY OR CUSTOM” REQUIREMENT In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Instead, municipalities may only be held liable for the execution of a governmental policy or custom. As the Monell Court explained: Id. at 694, 98 S.Ct. at 2037-38 (emphasis added). [I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Later, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court clarified MonelVs “policy or custom” requirement. In Pemb-aur, the Court explained that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Id. at 480, 106 S.Ct. at 1298 (majority opinion) (emphasis added). In particular, “where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.” Id. at 481, 106 S.Ct. at 1299 (majority opinion) (emphasis added). Thus, liability may arise from “a course of action tailored to a particular situation and not intended to control decisions in later situations,” id. at 481, 106 S.Ct. at 1299 (majority opinion), provided that “the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered,” id. at 481, 106 S.Ct. at 1299 (plurality opinion) (emphasis added) (footnote omitted). In light of Pembaur, this Court has interpreted Monell’s policy or custom requirement to preclude § 1983 municipal liability for a subordinate official’s decisions when the final policymaker delegates decisionmaking discretion to the subordinate, but retains the power to review the exercise of that discretion: [T]he mere delegation of authority to a subordinate to exercise discretion is not sufficient to give the subordinate" }, { "docid": "5806589", "title": "", "text": "even if the actions of February 21, 1986 violated the state law governing traffic violations and thereby violated Tanner’s constitutional rights, the single incident of arrest was insufficient to demonstrate an established policy of arrests for misdemeanor traffic offenses. Id. Municipalities, as well as municipal officials sued in their official capacity, are subject to liability under § 1983 when their policies subject an individual to the deprivation of any right guaranteed to him by the Constitution. Monell v. Dep’t of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). A municipality or governmental entity cannot be found liable under section 1983 on a respondeat superior theory; such liability can be imposed only for injuries inflicted pursuant to an official governmental policy. See City of Canton v. Harris, — U.S. -, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. at 2037. Moreover, “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). [A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers, it surely represents an act of official government “policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly- Id. at 481, 106 S.Ct. at 1299. See also Bateson v. Geisse, 857 F.2d 1300, 1303-04 (9th Cir.1988); Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir.1988) (Pemb-aur" }, { "docid": "17252747", "title": "", "text": "such damages only if they prove that one of the governmental bodies sued is responsible for the constitutional violation. Plaintiffs claim that the Clayton County School District should be liable under 42 U.S.C. § 1983 for the unconstitutional searches of the elementary school students. In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may not be found hable under 42 U.S.C. § 1983 on a theory of respondeat superior. See also Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.1997). A local government is’ only liable under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Mandel v. Doe, 888 F.2d 783, 791 (11th Cir.1989) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). It is by now well established that § 1983 liability may not be based on an employment relationship linking the local government to the offending employee; rather, “[rjecovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’' — -that is, acts which the municipality has officially sanctioned or ordered.” Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). In the instant case, plaintiffs allege that Clayton County School District is responsible for the unconstitutional searches of the students under three theories: (1) that assistant principal Roberts acted as a final policymaker when she authorized the searches of the students by Morgan and Billingslea; (2) that the school district failed to supervise or train its employees and condoned a policy of permitting searches- of students’ persons in violation of the Constitution; and (3) that the school district ratified the searches by “exonerating everyone and taking no corrective action.” (Pis.’ Br. [81] at 23.) The Court will address each theory in turn. 1. Municipal Liability Based on a Single Decision In Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89" }, { "docid": "20155689", "title": "", "text": "nom. Fauver v. Ryan, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989). Therefore, Negley and Clower are not protected by qualified immunity for the acts at issue in this case. As a result, we will not grant summary judgment in favor of these two defendants. C. Liability of the Town of Fenwick Island Defendants further argue that the Town of Fenwick Island cannot be held liable under 42 U.S.C. § 1983 (1988) for the acts of Negley and Clower. They point out that under Monnell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality may only be held liable under Section 1983 when the acts at issue “may fairly be said to represent official policy,” id. at 694, 98 S.Ct. at 2037-38, and state that no such official policy was involved in the present case. We agree, although for different reasons than those asserted by defendants. Defendants contend that more than one single incident is necessary to establish an official policy under Monnell. Although the decision was not cited by either party, the Supreme Court addressed this precise issue in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and held that “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Id. at 480, 106 S.Ct. at 1298. More specifically, the Court held that under Section 1983, “where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.” Id. at 481, 106 S.Ct. at 1299. The difficulty in applying this standard, is determining whether the particular official is one whose acts may be said to constitute governmental policy. In Pembaur, a plurality of four justices headed by Justice Brennan went on to define the type of official whose acts may constitute official policy as those “officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 483-84, 106 S.Ct. at 1300." }, { "docid": "22812129", "title": "", "text": "for failing to provide adequate training “in light of the duties assigned to specific officers or employees”); Brady, 187 F.3d at 114 (noting that properly handling exculpatory evidence is a “standard police function”). As to Count XXVI, we also must determine whether Moldowan can establish municipal liability based on the decisions an unidentified “individual having final policy-making authority.” In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that local government units could be held liable under § 1983 for deprivations of federal rights, but concluded that § 1983 did not support respondeat superi- or liability, reasoning that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 691, 98 S.Ct. 2018. In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion), however, the Court clarified that this “official policy” requirement did not preclude municipal liability “for a single decision by municipal policymakers under appropriate circumstances.” Id. at 480, 106 S.Ct. 1292. Although Pembaur recognized policy-maker liability, the Court made clear that “not every decision by municipal officers automatically subjects the municipality to § 1983 liability.” Id. at 482, 106 S.Ct. 1292. Rather, municipal liability “attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Id. In other words, the official must be “responsible for establishing final government policy respecting such activity before the municipality can be held liable.” Id. at 483, 106 S.Ct. 1292. Under Pembaur, therefore, the City may be held liable under § 1983 for the failure to disclose exculpatory evidence and the destruction of evidence from Moldowan’s first trial, even though those actions were not taken pursuant to an overarching policy. And, contrary to Defendants’ assertions, municipal “policymaker” liability has been clearly established at least since Pembaur was decided in 1986. Because we conclude that Moldowan’s claims against the City are based on claims that implicate clearly established constitutional rights, we" }, { "docid": "22349520", "title": "", "text": "Coffelt, McBride, Mueller and Rayburn) in their individual capacities, and reverse the dismissal against them on that claim. However, we hold that Meade’s complaint of excessive force does not state a claim against Fulton, Leavitt, Turpén, and the County Commissioners for Oklahoma County (Buchanan, Darrell and Snyder) in their individual capacities, and affirm that ruling. 3. The Claim of Liability in Official Capacity Unlike state officials, county employees may be sued in their official capacity. A judgment against a public servant in his official capacity imposes liability on the entity he represents, provided that it received notice and opportunity to respond. See Brandon v. Holt, 469 U.S. 464, 471-73, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985). For a county to be held responsible, it must have caused the harm through the execution of its own policy or custom by those whose edicts or acts may fairly be said to represent official policy. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). When a policy is not unconstitutional in itself, the county cannot be held liable solely on a showing of a single incident of unconstitutional activity. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 & 831, 105 S.Ct. 2427, 2436-37 & 2440, 85 L.Ed.2d 791 (1985) (plurality & Brennan, J., concurring in part & concurring in the judgment). However, “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). For example, “where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.” Id. at 481, 106 S.Ct. at 1299. See Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1312 n. 5 (10th Cir.), cert. denied, — U.S. —, 107 S.Ct. 275, 93 L.Ed. 2d 251 (1986). Meade alleged that the assault was the result of Sheriff Sharp’s “common practice and pattern” of" }, { "docid": "5780381", "title": "", "text": "be imposed on a government entity on a theory of re-spondeat superior for the actions of nonpoli-cymaking government employees. Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-37, 56 L.Ed.2d 611 (1978). In certain instances, however, a municipality may incur § 1983 liability for its employees’ actions when an official policy or custom of hiring or training causes those actions. Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.), cert. denied, — U.S. —, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). To prove that a municipal hiring or training policy violated an individual’s rights, the plaintiff must show that (1) the hiring or training procedures of the municipality’s policymaker were inadequate; (2) the municipality’s policymaker was deliberately indifferent to the constitutional rights of the citizens in adopting the hiring or training policy; and (3) the inadequate hiring or training policy directly caused the plaintiffs injury. Id. (citing City of Canton v. Harris, 489 U.S. 378, 390-92, 109 S.Ct. 1197, 1205-06, 103 L.Ed.2d 412 (1989)). Liability will accrue for the acts of a municipal official when the official possesses “final policymaking authority” to establish municipal policy with respect to the conduct that resulted in a violation of constitutional rights. Pembaur v. City of Cincinnati 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion). Municipal liability is limited to “acts that are, properly speaking, acts ‘of the municipality’—that is, acts which the municipality has officially sanctioned or ordered.” Id. at 480, 106 S.Ct. at 1298. The mere exercise of discretion by a county official will not be sufficient, by itself, to generate municipal liability: The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Id. at 481-83, 106 S.Ct. at 1299-1300. Bryan County has all but conceded that Sheriff Moore alone set all policies" }, { "docid": "12547648", "title": "", "text": "bodies may be liable under § 1983, however, where the alleged unconstitutional activity is inflicted pursuant to official policy. Id. at 690-91, 98 S.Ct. at 2035-36. In order to state a claim, therefore, Johnson must set forth facts which, if true, show that his constitutional rights were violated as a result of the city’s official policy. Assuming, without deciding, that Johnson was constitutionally entitled to counsel in connection with his various jail- ings, we turn to the question whether Judge Moore’s actions constituted official municipal policy. Johnson complains that because Moore was the final authority on his incarceration, Moore executed official municipal policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). We have defined official policy as: 1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). We have repeatedly held, however, that a municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker. See Bigford v. Taylor, 834 F.2d 1213, 1221-22 (5th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 108 (1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 529, 88 L.Ed.2d 461 (1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980) (distinguishing judge’s administrative duties, actions pursuant to which may constitute county policy under Monell, from judge’s judicial function, in which he" }, { "docid": "15452504", "title": "", "text": "application of federal law, the identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury. Reviewing the relevant legal materials, including state and local positive law, as well as custom or usage having the force of law, the trial judge must identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989) (emphasis added) (original emphasis omitted) (citation and internal quotation marks omitted). As with all conclusions of law related to the grant of summary judgment, we review de novo the district court’s determination that neither Barrett nor Younger are final policymakers with respect to terminations from the fire department. See, e.g., Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.1990). III. ANALYSIS A. MONELL’S “POLICY OR CUSTOM” REQUIREMENT In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Instead, municipalities may only be held liable for the execution of a governmental policy or custom. As the Monell Court explained: Id. at 694, 98 S.Ct. at 2037-38 (emphasis added). [I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Later, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court clarified MonelVs “policy or custom” requirement. In Pemb-aur, the Court explained that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Id. at 480," }, { "docid": "21693103", "title": "", "text": "individual capacity as to Cooper’s § 1983 claims. 2. Claims Against Dillon in His Official Capacity When suing local officials in their official capacities under § 1983, the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom. See Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir.1986) (per curiam) (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978)). “A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.... A custom is a practice that is so settled and permanent that it takes on the force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997). “Only those officials who have final policymaking authority may render the municipality liable under § 1983.” Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986) (plurality opinion)). “[S]tate and local positive law” determine whether a particular official has final policymaker authority for § 1983 purposes. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989). “[Mjunicipal liability may be imposed for a single decision by rúunicipal policymakers under appropriate circumstances.” Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. Based on the foregoing, we must determine whether Dillon had final policy-making authority for the City of Key West in law enforcement matters and whether his decision to enforce Fla. Stat. ch. 112.533(4) against Cooper was an adoption of “policy” sufficient to trigger § 1983 liability. While Dillon does not address the issue of his policymaking authority under Florida law, he argues that his enforcement of a state law could not subject the municipality to liability. We disagree. First, state law demonstrates that Dillon was the ultimate policymaker for police procedure in the" }, { "docid": "12547649", "title": "", "text": "promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). We have repeatedly held, however, that a municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker. See Bigford v. Taylor, 834 F.2d 1213, 1221-22 (5th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 108 (1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 529, 88 L.Ed.2d 461 (1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980) (distinguishing judge’s administrative duties, actions pursuant to which may constitute county policy under Monell, from judge’s judicial function, in which he or she effectuates state policy by applying state law). Johnson does not contend, in his complaint below or in his brief on appeal, that Judge Moore sentenced him to jail pursuant to the judge’s administrative or other non-judicial duties. He argues only that, under Pembaur, the municipal judge is a final policymaker whose official actions constitute municipal policy. This argument ignores the distinction we have consistently drawn between a judge's judicial and administrative duties. Only with respect to actions taken pursuant to his or her administrative role can a judge be said to institute municipal policy under Pembaur and Monell. Johnson’s complaint fails to show that his constitutional rights were violated as a result of the city’s official policy. The district court did not err when it dismissed Johnson’s claims against the city and Judge Moore in his official capacity. B. Standing Johnson further complains that the court erred when it dismissed his claim for injunctive and declaratory relief against Judge Moore in his individual capacity due to lack of standing. For a plaintiff to" } ]

[ { "docid": "23466167", "title": "", "text": "them. III. It is contended that the court erred in instructing that, as to the charge of unlawfully receiving and concealing narcotics, appellant could be found guilty on constructive possession. The argument made is that on the Government’s theory and evidence the issue was simply one of actual possession as between Miss Walker and appellant, and that to inject the matter of constructive possession could therefore only serve to confuse and mislead the jury. The instruction involved was as follows: “The possession contemplated by the statute * * * need not be personal and exclusive. It need not be immediate. It is sufficient if the evidence shows the defendant to have had possession of the narcotic on June 16, 1961”. It is to be noted that the term “constructive possession” was not used by the court (as it was in Erwing v. United States, 9 Cir., 296 F.2d 320, discussed below), although the elements mentioned are, of course, attributes of constructive possession. Erwing v. United States, supra, is relied on by appellant. There, in viewing the evidence as presenting only a question of actual possession, the court held that it was prejudicial to give an instruction which told the jury that “possession, actual or constructive, alone would authorize conviction unless such possession is explained to the satisfaction of the jury.” The opinion declared that “if the evidence established that Erwing had had or had possession of the cocaine, such possession, under the theory of the Government, could have been actual possession only”; that “(u)pon no reasonable view of the evidence could it be said that such possession was constructive”; that, fur ther, in speaking of actual and constructive possession, “the instructions * * * do not define in any manner the meaning which the jury should ascribe to those terms or the implied distinction in meaning between them”, but such meaning and distinction were “left entirely to the individual views of each juror”; and, finally, that “(t)he giving of the instruction that the statutory presumption should be applied if the cocaine were in the constructive possession of Erwing could only" } ]

[ { "docid": "23157397", "title": "", "text": "to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession. See, e. g., United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962); United States v. Mills, 293 F.2d 609 (3d Cir. 1961). When the agents entered the living room of the three room apartment, defendants stood around a rectangular table in the kitchen while a third person, Gloria Anderson, was standing in the living room near the doorless kitchen entrance. Upon entering the kitchen, the agents saw the diluted heroin, both in loose form and in glassine bags on the table which occupied a large portion of the area in the small kitchen. It appeared that someone recently had been in the process of placing small measured doses of a powdery mixture in glassine bags. Measuring spoons, mixing paraphernalia and a number of empty glas-sine bags were on the table. Measured amounts had been placed in fifteen of the bags. The agents also confiscated a bundle of forty-six bagged heroin doses lying on the floor near the foot of the refrigerator. The Government offered no proof other than the circumstantial evidence of possession from which the jury could infer that Inez knew that the heroin was illegally imported. It relied solely on the presumption of knowledge of illegal importation arising from unexplained possession of heroin permitted in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Inez took the stand in her own behalf and admitted that the apartment was her home. Her explanation to the charges was that she was preparing supper and that the mixing and packaging of heroin were being performed by Gloria Anderson. The latter she said had come from New Orleans a few months ago and that at Kelley’s request she had permitted her to stay at the apartment temporarily until she found a more permanent place to live. She also testified" }, { "docid": "23632990", "title": "", "text": "distribute it. Finding the evidence insufficient, we reverse. The evidence introduced to prove Wilson’s guilt under this count indicates that on April 3, 1978, the Dallas police received a tip from an informant that persons at the 3700 block of Dildock Street in Dallas, Texas, were in possession of and selling heroin. Two Dallas police narcotics officers went to that location and found Wilson and two other men engaged in a small stakes dice game. The officers discovered on the ground in some bushes about ten feet from the two men two contraceptive prophylactics containing forty-four capsules of heroin. Wilson had no drugs on him. He was arrested along with the other two men, but never was prosecuted by the State of Texas for this incident. Wilson subsequently was indicted by a federal grand jury for possession with intent to distribute heroin for this same occurrence. Possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1976), may be either actual or constructive. United States v. Moreno, 649 F.2d at 312; United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979). Constructive possession may be established by a showing of “ownership, dominion or control over the contraband itself, or dominion or control over the premises or the vehicle in which the contraband was concealed.” United States v. Moreno, 649 F.2d at 312 (quoting United States v. Martinez, 588 F.2d at 498). Like actual possession, constructive possession may be exclusive or joint, and may be proved by either direct or circumstantial evidence. Id. Since Wilson was not in actual possession of any drugs during the incident on April 3, 1978, his conviction on Count 9 may be sustained only upon a constructive possession theory. The evidence presented, however, is insufficient to establish constructive possession. The evidence fails to demonstrate that Wilson had any dominion or control over the forty-four heroin capsules. Instead it shows only that Wilson along with other persons was in proximity to the heroin. “[Mjere presence in the area where the narcotic is discovered or mere association with the" }, { "docid": "4944204", "title": "", "text": "or constructive possession of the narcotics involved would be sufficient as to the element of possession. The law is well settled that a person who, although not in actual possession of a thing, knowingly has both the power and the intention at a given time to exercise some dominion or control over a thing, either directly or through another person, is in constructive possession. United States v. Crippen, 459 F.2d 1387 (3d Cir. 1972). The defendant con tends, however, that constructive possession could not have occurred in this case because the defendant had no dominion and control over the informant, Aubrey Lewis. We find no error in charging the jury on constructive possession under the circumstances of this case. The evidence presented showed that the defendant and Agent Brown had a conversation during which the defendant offered to sell Agent Brown one and one half ounces of heroin for $1,800.00; that Agent Brown told the defendant that he would have to have a sample of the heroin before he would pay the defendant any money; that after leaving the bar for five or ten minutes the defendant returned to Agent Brown and told the undercover agent that he would have the requested sample in a short time; that the defendant left the bar again and upon his return a short- time later he took a seat at the bar across from the undercover agent; that the defendant immediately called the informant to come join him; that the undercover agent witnessed the movement of the defendant’s hands and the informant’s hands; that the informant remained within the view of the undercover agent and returned directly to him, at which time the informant handed the undercover agent two glassine bags; that the undercover agent immediately called the defendant over to where he was sitting and showed the two glassine bags to the defendant and acted as though he was requesting an explanation of their contents; and that the defendant pointed to the two bags and told Agent Brown that the larger bag was ready to be cut and that the smaller bag" }, { "docid": "23089300", "title": "", "text": "are without merit. However, the question whether Vergara’s involvement in the conspiracy was established is entitled to close scrutiny. In the course of the first two purchases by Hernandez, it became clear that Melendez had more than one “source.” The flurry of activity on March 15, 1979, including the multiple visits to Vergara's home, and the coconspirators’ report of their difficulty in contacting their source, is grist for the jury’s fact-finding mill. Vergara’s actions, particularly his motioning Espinoza over to his vehicle from which Espinoza secured the brown paper bag, and the immediate delivery of that bag to Hernandez, provide additional grist. While each piece of evidence, standing alone, may have been susceptible of innocent interpretation, we are convinced that the jury reasonably could have concluded that the evidence, when examined in the aggregate, sufficed to establish that Vergara was a culpable member of the conspiracy as charged in the indictment. Possession Count 6 charges Vergara with possessing heroin with intent to distribute, a charge he disputes, contending that the government failed to carry its burden of proving that he actually possessed or exercised dominion or control over the heroin delivered to Hernandez, or that the bag removed from his car was the same heroin-laden bag seized from Melendez. Three elements must be proven by the government in order to sustain a conviction for the crime of possession of heroin with intent to distribute: “(1) knowing (2) possession of heroin (3) with intent to distribute it.” United States v. Richards, 638 F.2d 765, 768 (5th Cir.) cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). Possession may be actual or constructive, may be joint among several defendants, and may be proved by circumstantial as well as direct evidence. United States v. Wilson. Constructive possession has been defined as “ ‘the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance.’ ” United States v. Glasgow, 658 F.2d at 1043 (quoting from United States v. Marx, 635 F.2d at 440). One who owns or exercises dominion or control over a" }, { "docid": "6744926", "title": "", "text": "or any request for limiting instruction. Nicanor’s directive at the airport that Lavadia should give the heroin to appellants similarly was clearly admissible against Nicanor with no objection under Fed.R.Evid. 403 and no request for a limiting instruction. II. Appellants also assert that the evidence was insufficient to sustain their convictions for possession of heroin. The government responds that they were, “minimally” in control of the drugs. We disagree. Possession of a controlled substance may be actual or constructive. United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir.), cert. denied, 444 U.S. 875, 100 S.Ct. 157, 62 L.Ed.2d 102 (1979). Actual possession connotes physical custody or actual personal dominion. Cf. United States v. Amaro, 422 F.2d 1078, 1080 (9th Cir. 1970) (“physical custody”). The record is devoid of evidence that appellants had actual possession of the heroin. A DEA agent delivered the drugs to Lavadia. Agents entered the hotel room to effect arrests minutes after delivery. During that brief time, Noguera did not touch the package. Testimony that Batimana “tried” to place his hand inside the bag is insufficient to establish physical custody. Neither appellant had personal possession of the package. Constructive possession has been defined as “ ‘dominion and control . so as to give power of disposal of the drug.’ ” Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962). Mere proximity to the drug, mere presence, or mere association with the person who does control the drug is insufficient to support a finding of possession. Id. There is no evidence that appellants asserted dominion and control over the heroin. Indeed, the limited time span negates such an argument. Lavadia took possession of the package upon delivery. Appellants were not included in the subsequent conversation between Lavadia and Nicanor. Viewing the contents of the drug package does not indicate the requisite ability “ ‘to assure [its] production, without difficulty, to a customer.’ ” United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir. 1972). As an alternative ground for affirmance, the government argues that" }, { "docid": "7312837", "title": "", "text": "to flush the contents of two plastic bags down the toilet. The agents found in the room $11,881.35 in cash, an airline ticket from Omaha to Cleveland, Ohio via Chicago, a strainer or sifter, measuring spoons and the suitcase. All three Appellants were arrested at that time. Approximately one month later Williams, Jr. appeared at the Bureau of Narcotics and Dangerous Drugs, where he signed for and was given several of the items seized by the agents. Appellants were tried on the charges of possession and conspiracy, and Williams, Sr. was convicted of possession of heroin and possession of cocaine. The jury was unable to return a verdict on the conspiracy charge as to Williams, Sr. or on any of the charges as to Williams, Jr. and Johnson. The charges of possession were dismissed as to Williams, Jr. and Johnson, and at a second trial, all three Appellants were convicted on the conspiracy charge. Williams, Sr. contends that the court should have directed a verdict of acquittal on the charge of possession for the reason that there was insufficient evidence of his possession of heroin and cocaine. As there was no evidence of actual possession, the government’s case hinges on the evidence that Williams, Sr. had constructive possession of the suitcase while in Cleveland, Ohio. In United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), we said: Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others. There is no dispute as to constructive possession of the suitcase after it and its contents had been seized by the U. S. Customs Agent. At that point, Williams, Sr. clearly had no dominion or control of the contents of the bag. The inquiry is whether Williams, Sr., in Cleveland, had dominion and control over the bag, in Chicago, before its seizure. At the time the suitcase was in the physical custody of the airline personnel in Chicago, it had no tag or claim" }, { "docid": "17878930", "title": "", "text": "three loaded pistols and nineteen capsules of heroin. This court again reversed appellant’s conviction, stating that “[mjerely showing that appellant was a passenger in the car and in proximity to the heroin is, without more, insufficient to support a finding of possession.” Id. at 793. In the present case, the Government has done nothing more than show Pardo’s proximity to the narcotics in question, and his association with others who apparently were in possession of the drugs. As stated in United States v. Holland, 445 F.2d 701, 703 (D.C. Cir. 1971), where the court reversed a drug conviction due to the insufficiency of the evidence to prove constructive possession: It is perfectly true that this appellant may be guilty. The trouble with absence of evidence is that it is consistent with any hypothesis (emphasis in original). Similarly, in the present ease it is certainly possible that Pardo was in a position to exercise control over the drugs. On the basis of the Government’s evidence, however, so are many other theories. We hold that the evidence against Pardo is such that a reasonable juror could not find guilt beyond a reasonable doubt, and that his motion for acquittal at the close of the Government’s case should have been granted. IV. To summarize, we hold that the convictions of appellants Tate and Goodwin must be reversed, with this case remanded for a new trial at the Government’s election. The conviction of appellant Pardo is reversed, with directions to dismiss the charges against him. The conviction of appellant Mendoza is affirmed. So ordered. . Aside from a forensic chemist called to identify the narcotics, Agent Lee was the Government’s sole witness at trial. “Tr.” refers to the transcript of the trial conducted before the Honorable Aubrey Robinson, District Judge, between June 26 and June 29, 1979. . While they were waiting, Corbett showed Lee a small amount of cocaine that Corbett had allegedly gotten from the package Lee was to purchase. A test of the powder with clorox indicated that it was in fact cocaine (Tr. 59-60). . Lee testified that Corbett never" }, { "docid": "11860763", "title": "", "text": "the defendant “handed over a small amount of mari juana ... for smoking purposes” to another individual without proof that the other individual “had jointly and simultaneously acquired possession of the drug at the outset.” Id. at 450 (citing United States v. Branch, 483 F.2d 955 (9th Cir.1973)). Rather, since “sole possession” in such a case would rest with the defendant, “his transfer of the drug to a third person, friend or not,” would violate the prohibition on drug distribution. Swiderski, 548 F.2d at 450. Wallace had “sole possession” of the drugs, even if he “handed over a small amount” to his occasional visitor. Id. Nor can Wallace find refuge in cases in which convictions under 21 U.S.C. § 841(a) were reversed for want of evidence that the possession of narcotics was with the intent to distribute. In United States v. Boissoneault, 926 F.2d 230 (2d Cir.1991), we reversed a conviction on sufficiency grounds where “the quantity of cocaine at issue, 5.31 grams (.19 oz.), was not inconsistent with personal use.” Id. at 234. But in that case, and other similar cases, it mattered that defendant had none of the tools of the trade. Thus there was no proof that Boissoneault had “scales, beepers, and other devices,” or the “materials needed to process cocaine or to package it in druggist folds,” or “a gun or other weapon, which would have helped sustain an inference that he was engaged in the dangerous business of drug trafficking.” Id. This is not the Boissoneault case. When the Rochester police searched Wallace’s bedroom, they found (among other things) 1.5 grams of cocaine base parceled out in more than a dozen small ziplock bags; a dinner plate holding numerous new and unused small ziplock bags; a ziplock bag containing numerous new and unused small ziplock bags bearing green dollar signs; a dresser drawer full of empty and unused glassine ziplock bags; and a semi-automatic assault weapon and ammunition for it. Viewed in the light most favorable to the government, this evidence supports the inference that Wallace had the intent to distribute narcotics. See United States" }, { "docid": "12122168", "title": "", "text": "on the supposition that the unaccounted for containers were simply added to the original containers. It is possible, without testimony on this issue, that an entirely new collection of six small plastic bags was added to the opaque shopping bag along with the extra bags and the plastic vial. We cannot know unless the original small plastic bags were identified (which they were not), or the substance itself was marked or possessed individual characteristics (which it was not) or Loveless testified as to what happened during his period of custody (which he did not). I do not believe the majority’s rationale on this part is persuasive in the least. Cf. United States v. Daughtry, supra. In conclusion, under the facts and circumstances of this case, I cannot agree that the Government has sufficiently shown that Whipple’s white crystalline powder if tested by Buer was in a substantially unchanged condition. The nature of the cocaine in this case is fungible because it was a white powder substance and because it was packaged in indistinguishable sealed small clear plastic bags. The circumstances of its preservation and custody are highly suspect since the large shopping bag containing these bags was not sealed until someone with the initials CEL placed it in a sealed evidence envelope. The probability of intermeddling or tampering is great since at the very least it is clear that two plastic bags and one plastic vial were added to Whipple’s alleged white crystalline powder. See United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973). Prosecution exhibit 10 and the testimony of the chemist Buer also should not have been admitted on this ground. I would reverse the decision of the court below and set aside the findings of guilty and the sentence. . This court has not adopted the position of the District of Columbia Circuit in United States v. Coleman (D.C.Cir. July 11, 1980), that such entries by police officers are not reports prepared for purposes of prosecution. See United States v. Nault, 4 M.J. 318, 320 n. 7 (C.M.A.1978)." }, { "docid": "12122164", "title": "", "text": "there were six small plastic bags and one wax paper packet containing Whipple’s white crystalline powder. The testimony of the chemist Buer, three steps down the chain of custody, indicates there were seven or eight small plastic bags, one wax paper packet and one small plastic vial. These discrepancies are not explained in any way by the Government. Third, the ambiguous testimony of Hampton noted by the majority indicates that a field test may have been held by federal officers in the sick bay of appellant’s ship. No other evidence was offered by the Government to explain this testimony of Hampton or account for the condition of Whipple’s white crystalline powder during such a field test. Under these circumstances, this record of trial cannot be considered “bare of any indication” that the evidence was mishandled. See Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969). The Whipple white crystalline powder was in six sealed small plastic bags and an unsealed wax paper packet, all further enclosed in an unsealed plastic shopping bag at least until Loveless received them. In light of the testimony of the chemist Buer, there is a clear indication that after that time the large shopping bag was opened. Moreover, there is a clear indication in the record that some amount of small, sealed, clear plastic bags was added to this bag and they cannot be distinguished from the bags allegedly containing Whipple’s white crystalline powder. There also is a clear indication that one plastic vial was added to the larger plastic shopping bag. Tampering of some type occurred in this case. The majority, however, asserts that this evidence does not suffice to establish tampering because a presumption of regularity in the handling and storage of the substances attached during Agent Loveless’ possession of Whipple’s alleged white crystalline powder. See United States v. Strangstalien, 7 M.J. 225, 229 (C.M.A.1979). I do not believe this presumption of regularity attached in this case for the following reasons: First, Agent Loveless was not a neutral chemist but an investigative agent for the Drug Enforcement Administration. In this status," }, { "docid": "23089301", "title": "", "text": "burden of proving that he actually possessed or exercised dominion or control over the heroin delivered to Hernandez, or that the bag removed from his car was the same heroin-laden bag seized from Melendez. Three elements must be proven by the government in order to sustain a conviction for the crime of possession of heroin with intent to distribute: “(1) knowing (2) possession of heroin (3) with intent to distribute it.” United States v. Richards, 638 F.2d 765, 768 (5th Cir.) cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). Possession may be actual or constructive, may be joint among several defendants, and may be proved by circumstantial as well as direct evidence. United States v. Wilson. Constructive possession has been defined as “ ‘the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance.’ ” United States v. Glasgow, 658 F.2d at 1043 (quoting from United States v. Marx, 635 F.2d at 440). One who owns or exercises dominion or control over a motor vehicle in which a contraband substance is concealed may be deemed to possess the contraband. Id.; United States v. Riggins, 563 F.2d 1264 (5th Cir. 1977), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 150 (1978). Since there is no evidence of actual possession, the charge against Vergara necessarily rests on constructive possession. We find adequate evidence to support the jury’s conclusion in that regard. We are not persuaded that Vergara was merely present at the scene of a criminal act or that he was an innocent acquaintance or associate of persons who possessed contraband. The coconspirators’ repeated visits to Vergara’s home, followed by their reference to abortive attempts made to contact their source, Vergara’s ownership and exclusive control of the Cadillac, his brief verbal exchange with Espinoza and apparent direction and approval of the latter’s entry of his Cadillac for the purpose of securing the brown paper bag, Espinoza’s demeanor upon retrieving the bag, the brief, uninterrupted journey of coconspirators Melendez, Prado and Espinoza culminating in the putative “sale” to Hernandez," }, { "docid": "13221333", "title": "", "text": "of the crimes charged against Alicea-Cotto beyond a reasonable doubt. 1. The Drug Counts: Possession of Narcotics with Intent to Distribute (Counts Three, Four and Five) To prove that Alicea-Cotto possessed controlled substances for purposes of section 841(a)(1), it was sufficient for the government to show that he had constructive possession of the drugs, i.e., that he exercised “dominion and control over [the] area where [the] narcotics [were] found.” United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.2006) (quotation marks and citation omitted); see also United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.2007). Officer Vega testified that he found the transparent bag containing the drugs in plain view on the floor of the Nissan Armada. Alicea-Cotto acknowledged that the vehicle belonged to him, and he was standing beside the SUV moments before Vega discovered the drugs. His ownership of, and proximity to, the vehicle permitted the jury to infer that Alicea-Cotto had “dominion and control” over the location where the drugs were found and, consequently, to find that he constructively possessed the narcotics. See, e.g., United States v. Johnson, 470 F.3d 1234, 1238 (8th Cir.2006) (“To prove constructive possession, the Government must show that [defendant] had knowledge and ownership, dominion, or control over the contraband itself, or dominion over the vehicle in which the contraband [was] concealed.”) (quotation marks and citation omitted); United States v. Olivo-Infante, 938 F.2d 1406, 1411 (1st Cir.1991) (holding that jury could reasonably infer defendant’s constructive possession of cocaine that was found in his car). The record also supports the jury’s finding that Alicea-Cotto intended to distribute the drugs. We have held that a large amount and individual packaging of drugs is sufficient to demonstrate an intent to distribute for purposes of section 841(a)(1). See García-Carrasquillo, 483 F.3d at 130 n. 12. Here, the packaging alone was strong circumstantial evidence that the drugs were intended for distribution. Officer Vega testified that the plastic bag he found in the SUV contained ninety plastic cylinders of cocaine base, forty-four plastic bags of cocaine and fifty-six aluminum wrappings of heroin. The jury reasonably could infer from" }, { "docid": "23157396", "title": "", "text": "explains it to the jury’s satisfaction. Proof of actual possession need not be shown; it may be established by circumstantial evidence. United States v. Raysor, 294 F.2d 563 (3d Cir. 1961); United States v. Malfi, 264 F.2d 147 (3d Cir. 1959), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959). See also, United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); Smith v. United States, 385 F.2d 34 (5th Cir. 1967). The evidence must be such, however, that a jury may infer that the person charged with possession had dominion and control of the narcotic drug, United States v. Gary, 447 F.2d 907, 909 (9th Cir. 1971); Brothers v. United States, 328 F.2d 151, 155 (9th Cir. 1964), or that he knowingly had power to exercise dominion and control over the drug. Amaya v. United States, 373 F.2d 197 (10th Cir. 1967). Such dominion and control need not be exclusive but may be shared with others. Brothers v. United States, supra, 328 F.2d at 155. On the other hand mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession. See, e. g., United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962); United States v. Mills, 293 F.2d 609 (3d Cir. 1961). When the agents entered the living room of the three room apartment, defendants stood around a rectangular table in the kitchen while a third person, Gloria Anderson, was standing in the living room near the doorless kitchen entrance. Upon entering the kitchen, the agents saw the diluted heroin, both in loose form and in glassine bags on the table which occupied a large portion of the area in the small kitchen. It appeared that someone recently had been in the process of placing small measured doses of a powdery mixture in glassine bags. Measuring spoons, mixing paraphernalia and a number of empty glas-sine bags were" }, { "docid": "6564688", "title": "", "text": "the lesser included offense of simple possession of the heroin. We hold the evidence to be insufficient, and reverse Gardner’s conviction with instructions that the charges be dismissed. The appellate court may inquire whether the evidence, considered in a light most favorable to the Government, permitted a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. The test is not whether the evidence must exclude every possibility but that of guilt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). Given this test, nevertheless, this Court is convinced that the largely circumstantial evidence introduced cannot permit a rational conclusion that Gardner was guilty of simple possession of the heroin beyond a reasonable doubt. Clearly, the issue is not whether Gardner had actual possession, but whether he had constructive possession, i. e., dominion and control over the heroin at the time in question. The test for the latter in this Circuit is whether “One [has] a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer . . . But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug and cannot be said to have possession of it.” United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir., 1972) quoting Hill v. United States, 379 F.2d 811, 814 (9th Cir., 1967). See Arellanes v. United States, 302 F.2d 60S, 606 (9th Cir., 1962). There are two rather disturbing inconsistencies in the case against Gardner: (1) the jury found insufficient evidence to convict him of the four counts charged, yet found him guilty of simple possession; and (2) the law supporting the verdict reached would have him exercising the requisite dominion and control over the heroin at the time in question, notwithstanding a relatively complete subordination to Le Boulanger as his servant. These" }, { "docid": "7606569", "title": "", "text": "discovered in appellant’s possession upon his arrest. The capsules contained an “interference substance,” the chemist explained, in consequence of which a quantitative test would have taken six months to a year to produce fully accurate results. This court has never held that the Government must prove the specific quantum of a narcotic drug possessed by the accused as a predicate for his conviction of narcotic offenses. Here it was shown that the amount of heroin was more than a trace, and that it was capable of quantitative analysis. The chemist testified that the powder found in the capsules contained a substantial amount of heroin, and supported his opinion with a detailed explanation of the tests he had conducted in arriving at the conclusion. We hold that this was enough to discharge the Government’s burden of establishing appellant’s possession of heroin, and to permit the statutory inferences upon which the jury might base the convictions. Affirmed. . Count one charged appellant with violating 26 U.S.C. § 4704(a) which provides: It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found. Count two charged a violation of 21 U.S.C. § 174 which provides: Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law * * *, shall be imprisoned not less than five or more than twenty years * * *. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession" }, { "docid": "5496603", "title": "", "text": "The agents observed Kern bringing the suitcase into the terminal where he exercised actual control and dominion over it until he gave the larger bag to Goldstein. Kern’s general behavior, together with the other facts, would support the inference that Kern at the time he had actual control over the suitcase was aware that it contained the contraband. Furthermore, possession of contraband may be constructive as well as actual and may be proven by circumstantial evidence. See e. g., United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir. 1977), cert. denied, 439 U.S. 878, 99 S.Ct. 148, 58 L.Ed.2d 150 (1978). Reviewing the evidence as a whole, we conclude that it was amply sufficient to support Kern’s conviction for possession of the cocaine. United States v. Johnson, 469 F.2d 973, 977 (5th Cir. 1972). Because appellants’ contentions are without merit, we hold that the district court was correct in denying appellants’ motion to suppress and their motions for judgment of acquittal. Thus the convictions of Kern and Goldstein are AFFIRMED. . At the motion hearing, there was some dispute about the timing of the investigatory stop and the sniff by Zeke. Appellants had claimed that they were stopped before their bags were sniffed and therefore such a stop was not justified at that point. The district court found to the contrary and appellants have not raised this issue on appeal. . Agent Maroney was questioning Lynch during the interaction between appellants and the other DEA agents. Maroney informed Lynch of Zeke’s reaction and received Lynch’s consent to the search of his baggage. A small amount of marijuana residue was found at the bottom of each bag along with $2,500 in cash in one bag and a chemical test kit in the other. Lynch was not charged with any crime and was released. . The subsequent analysis of the substance seized revealed that the cocaine hydrochloride weighed 766 grams and that 73% (or 559 grams) was pure cocaine. . United States v. Ballard, 573 F.2d 913, 914 (5th Cir. 1978) describes the drug courier profile in detail. The profile is" }, { "docid": "17878925", "title": "", "text": "that the defendant was in a position or had the right to exercise dominion and control over the drugs.” 562 F.2d at 684. Finally, there must be evidence to show that there was a “knowing” possession. United States v. Watkins, 519 F.2d 294, 298 (D.C. Cir. 1975). It is rare that drugs are found to be in the “actual” possession of the defendant; in nearly all cases, the question is whether the Government has sufficiently proven that the defendant was in “constructive” possession of the drugs. So it is in this case. The question that must be considered is whether the defendant knew that he had the right to exercise some control over the narcotics. This is obviously a difficult question of fact, which will nearly always turn on circumstantial evidence. In a normal case it is a question that therefore must be resolved by the jury, after hearing all the evidence and considering all of the inferences therefrom. Appellant Mendoza presents a close case. We hold, however, that there was sufficient circumstantial evidence to justify submitting the question of guilt to the jury. It is not for this court to decide how we would have voted sitting as a member of that panel. As long as the evidence is such that a reasonable juror could find that the defendant was guilty beyond a reasonable doubt, the decision of the jury must stand. We believe that in the present case there was such evidence. Appellant Mendoza was present in a small room where a significant quantity of narcotics was being sold. It is not his presence, however, from which the jury may find guilt. Mendoza was directly asked whether the contents of the bag had been tested. Mendoza responded that it had not been tested. From this, a jury clearly could have concluded that Mendoza knew what was in the bag and was in a position to exercise some control over it. Indeed, Mendoza illustrated more than mere knowledge of what was in the bag; he indicated some familiarity with it by demonstrating that he knew it had not been" }, { "docid": "3830358", "title": "", "text": "powder. In this factual environment, we have no difficulty in holding that each of the exhibits was properly admitted in evidence. Only on the admission into evidence of the bottle is there a possibility of room for argument. It is argued that the agent who placed the fluorescent powder on the bills is the one who found the bottle and it was the powder from his hands, rather than from the hands of appellant, which was present on the bottle. This was a jury question. Even if we were to hold that the admission of the bottle was error, which we do not, the evidence of appellant’s guilt is so overwhelming, that we would find the error harmless under Rule 52(a), F.R.Crim.P. Appellant’s claim that there is no evidence that he had possession of the heroin is clearly without substance. Possession may be actual or constructive, and constructive possession is sufficient to sustain a conviction. Here, the possession of part of the marked money by the appellant and the presence of the fluorescent powder on his hands is without question circumstantial evidence of both actual and constructive possession of the heroin. The same can be said of the presence of the marked money in the drawer of the residence occupied by appellant. Dominion and control over the heroin, even without physical custody, is sufficient to invoke the doctrine of constructive possession. Moody v. United States, 376 F.2d 525, 529 (9th Cir. 1967); Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962), cert. denied 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238;Rodella v. United States, 286 F.2d 306 (9th Cir. 1960). The jury has resolved the issue of possession against the appellant. Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962), on which appellant relies, aside from being a narcotics case, has little resemblance to ours. Simply stated, there was no evidence in Hernandez of either actual or constructive possession of the heroin. In our analysis of the sufficiency of the evidence, after verdict, we are guided by the rule that the evidence must be viewed in the" }, { "docid": "1387237", "title": "", "text": "underlying offense, 21 U.S.C. § 841(a)(1), the United States must establish beyond a reasonable doubt that they (1) knowingly (2) possessed marihuana (3) with intent to distribute it. See United States v. Richardson, 848 F.2d 509, 511 (5th Cir.1988); United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986). Possession of the illicit narcotic may be actual or constructive, constructive possession being “the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance.” Gardea Carrasco, 830 F.2d at 45 (quoting United States v. Glasgow, 658 F.2d 1036, 1043 (5th Cir.1981)). In addition, possession and intent to distribute may be established by circumstantial evidence, and intent may be inferred as well from possession of a large amount of the illicit substance. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). Ayala argues that the United States failed to prove any element of the conspiracy charge and that it did not establish that he had possession of the marihuana. To the contrary, the evidence against Ayala appears to have been more than sufficient to support his conviction. That evidence included testimony linking Ayala to a self-storage facility unit that he controlled, to which narcotics dogs alerted and in front of which government agents discovered marihuana residue. In addition, the evidence indicated that the white bags Ayala was seen carrying into the unit were similar to those containing traces of marihuana that agents discovered in a nearby garbage bin. The unit contained a scale. Further testimony disclosed that the blue suitcase Ayala stored at the unit on March 15 appeared identical to one holding marihuana that agents seized at the train station on April 12. The evidence also revealed that early on April 12, agents observed Ayala accompany Reza to the train station and wait while Reza stood in the ticket line. Later in the day, they watched Ayala, Portillo, and Reza arrive at the station together in the black Bronco and unload luggage from its rear. When considered with the prior evidence, as well as evidence that Ayala was arrested carrying a train" }, { "docid": "7606568", "title": "", "text": "Assuming that appellant’s story was true, we nonetheless think it was too much to hope that Ford would waive his own Fifth Amendment rights to extricate appellant. Indeed, the fact that Ford fled to avoid punishment for one offense makes it highly improbable that he would have willingly implicated himself in another. In addition, Sergeant Paul testified at the pretrial hearing on the motion to suppress that Ford denied that the jacket was his. This testimony could have been used to impeach Ford’s corroboration of appellant’s story had Ford cooperated. Without Ford, appellant was able to testify that Ford admitted to Sergeant Paul that it was his jacket, not appellant’s, without rebuttal by the Government. All circumstances considered, Ford’s unavailability for the trial did not, in our view, generate a significant possibility of prejudice to the defense. Ill Lastly, appellant asserts that the evidence was insufficient to prove the charged offenses beyond a reasonable doubt because the Government’s expert witness, a chemist, could not state the exact quantity of heroin that was in the capsules discovered in appellant’s possession upon his arrest. The capsules contained an “interference substance,” the chemist explained, in consequence of which a quantitative test would have taken six months to a year to produce fully accurate results. This court has never held that the Government must prove the specific quantum of a narcotic drug possessed by the accused as a predicate for his conviction of narcotic offenses. Here it was shown that the amount of heroin was more than a trace, and that it was capable of quantitative analysis. The chemist testified that the powder found in the capsules contained a substantial amount of heroin, and supported his opinion with a detailed explanation of the tests he had conducted in arriving at the conclusion. We hold that this was enough to discharge the Government’s burden of establishing appellant’s possession of heroin, and to permit the statutory inferences upon which the jury might base the convictions. Affirmed. . Count one charged appellant with violating 26 U.S.C. § 4704(a) which provides: It shall be unlawful for any person" } ]

[ { "docid": "8526729", "title": "", "text": "were under a duty, while engaged in the scope of their employment in the Flight Service Station at Bryce Canyon, Utah, to be observant to and listening for the sounds of aircraft circling the airport at night in an attempt to get the runway boundary lights turned on. 3. Employees of the defendant United States of America were careless and negligent in carrying out their duties and in otherwise operating the Bryce Canyon Airport Flight Service Station on the night of November 8, 1969. 4. Such carelessness and negligence on the part of the employees of the defendant United States proximately caused the subject air crash and the ensuing deaths of the pilot and the two passengers, Joe W. Murray and John Richard Droubay. 5. The defendant United States of America had a duty, in connection with its publication and dissemination of aeronautical charts and airport directory information, to truly and accurately represent the runway lighting available at Bryce Canyon, Utah, and the circumstances under which those lights would be on or would be turned on at night. 6. The defendant United States of America negligently published and disseminated certain aeronautical charts and other information which falsely indicated that either the runway lighting at Bryce Canyon was available throughout the night without request or that it was available to a night-flying pilot who circled the field as a means of requesting such lighting. 7. Such negligence on the part of the United States of America in publishing and disseminating false aeronautical information regarding the available runway lighting at Bryce Canyon, Utah was also a proximate cause of the subject air crash, and the ensuing deaths of the pilot and the two passengers, Joe W. Murray and John Richard Droubay. 8. Defendants’ acts of negligence, as found hereinabove, did not arise out of the exercise of any discretionary functions within the meaning of 28 U.S.C. Section 2680(a). 9. Defendants’ acts of negligence, as found hereinabove, did not constitute mere “misrepresentations” within the meaning of 28 U.S.C. Section 2680 (h). 10. The plaintiffs are entitled to recover from the defendant United States" } ]

[ { "docid": "439224", "title": "", "text": "runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart.” Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC’s decision to not require more detailed information on aeronautical charts such as the Wichita sectional chart. Their suit amounts to a challenge of the IACC’s decision on how much possible ambiguity it was willing to tolerate from lack of detail on sectional aeronautical charts, in favor of other policy goals such as chart clarity. The IACC could well have decided that its sectional charts would provide pilots certain minimum information, leaving to the pilot the responsibility of further inquiry for details from other sources available to him. In our view, this is precisely the kind of discretionary judgment that Congress in section 2680(a) meant to shield from suit: “determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The principle upon which section 2680(a) rests appeared early and succinctly in our jurisprudence, when Chief Justice John Marshall said: “It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction [to review the executive’s discretionary functions]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Unlike cases relied upon by plaintiffs to support their claim, we do not have here a situation where negligence has attended the mechanical preparation, as distinguished from the substance of the design, of an aeronautical chart. See, e. g., Reminga v. United States, 631 F.2d" }, { "docid": "4958400", "title": "", "text": "tower in question “was in an offset location on the aeronautical chart.” That is, it was erroneously placed on the map. It contends, however, that such an error in location is not negligence, that the error was not a proximate cause of the accident, and that in.any event plaintiffs’ decedents were contributorily negligent in flying in such weather. The United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused. Murray v. United States, 327 F.Supp. 835 (D. Utah, 1971); Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala. 1968), aff’d, 411 F.2d 794 (5th Cir. 1969). The analysis of the Supreme Court in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), is applicable. “The Coast Guard need not undertake the lighthouse service. But onde it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair^ the light or give warning that it was no|; functioning. If the Coast Guard failed; in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.” This activity does not fall under either the discretionary function exception, Sullivan, supra, at 626, or the misrepresentation exception of 28 U.S.C. § 2680(h), Murray, supra, at 841. Cf. Somerset Seafood Co. v. United States, 193 F.2d ,631 (4th Cir. 1951). Defendant argues that the cartographer’s art is not so refined as to make the chart a perfect representation of the hazards and landmarks which are marked. It is true that some displacement of hazard markings is necessary where the hazards" }, { "docid": "2853503", "title": "", "text": "true examples of day-to-day, operational level activities. Thus, the omission of the northerly route from the chart, the misleading placement of the altitude figure on the chart, and the misplacement of the blue diamonds on the chart, are all operational activities and the government can be liable for the alleged negligence. Numerous cases hold that in connection with aeronautical charts prepared, published and disseminated by the government, the government has a duty to truly and accurately represent those features it at tempts to portray, and that discharge of this duty does not fall within the discretionary function exception. Reminga v. United States, 448 F.Supp. 445, 460 (W.D.Mich. 1978), aff’d, 631 F.2d 449, 458-59 (6th Cir. 1980). Accordingly, the government is liable for negligence in the preparation, publication and circulation of an erroneous or misleading sectional chart. Allnutt v. United States, 498 F.Supp. 832, 837 (W.D.Mo. 1980); Sullivan v. United States, 299 F.Supp. 621, 625-26 (N.D.Ala.1968), aff’d. 411 F.2d 794 (11 Cir. 1969). Thus, the government has been held liable for charting a television broadcasting tower on the wrong side of the railroad tracks than it was actually located, Id.; and for providing false and dangerously misleading runway lighting information on a sectional chart, Murray v. United States, 327 F.Supp. 835, 841 (D.Utah 1971), aff’d. 463 F.2d 208 (10 Cir. 1972). In the present case the government can be held liable for preparing, publishing and disseminating the allegedly inaccurate and misleading San Francisco sectional chart. In making its rulings that the government can be liable for its alleged negligence in charting the route and in preparing the sectional chart, the Court finds that it is able to evaluate the alleged actions of the government by customary tort standards. Further, the Court finds that such evaluation will not impair the effective administration of the FAA and not subject it to an unreasonable number of lawsuits. Until now the Court has not discussed plaintiffs’ claim that the chart is also inaccurate and misleading because it fails to identify and explain the symbols used in the charting of the route. The use of charting" }, { "docid": "14958536", "title": "", "text": "227; Eastern Air Lines v. Union Trust Company (Court of Appeals, D.C.) 221 F.2d 62, affirmed 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796, on authority of Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; American Exchange Bank of Madison, Wis. v. United States (7th Cir.) 257 F.2d 938; Jemison v. The Duplex (So.Dist. of Ala.) 163 F.Supp. 947. The chart for the Tuscaloosa airport shows the unadorned symbol “L”. The legend on the chart explains this to mean “lighing available sunset to sunrise.” The legend further shows that if the “L” is preceded by an asterisk (*L), the symbol means “lighting available sunset to sunrise on prior request”. The legend does not tell the pilot that an airport showing a symbol “L” may not be lighted when he arrives during the night time. The explanation of the symbol “*L” by stating that one must request lighting at an airport so marked, suggests that no request of any kind is necessary where the unadorned “L” is the symbol employed. The symbol “L” applies to Birmingham and other major cities on the chart. These obviously have lights all night. Upon consulting the chart, one would likely assume that the Tuscaloosa airport having a common symbol would have common accommodations with respect to runway lights. By employing the letter “L” at Tuscaloosa to a situation where the lights are turned off after the last commercial flight, and to Birmingham where they burn continuously, the chart did not mean what it plainly indicated. The legend contained no cross reference that would direct the pilot’s attention to any qualification of the unadorned symbol “L”. The Airman’s Information Manual indicated that the unadorned “L” may have two meanings by stating that if the field was dark when the pilot arrived, he could obtain lights by circling the field. For many years a recognized and acceptable way for a night flying pilot to get the runway lights turned on has been to circle the field. For the pilot without a radio or a radio that has gone dead," }, { "docid": "1520735", "title": "", "text": "IACC rules for inclusion of power lines on sectional aeronautical charts. See generally, Reminga v. United States, supra; In re Air Crash Disaster Near Silver Plume, Colo., 445 F.Supp. 384, 402-404 (D.Kan. 1977). III. NEGLIGENCE Jurisdiction having been established, this Court must now determine whether there was any operational level negligence in the preparation of Chart 13. This Court initially observes that “[t]he United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused.” Reminga v. United States, supra, 448 F.Supp. at 460 (citing Murray v. United States, 327 F.Supp. 385 (D.Utah 1971); and Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala.1968) aff’d. 411 F.2d 794 (5th Cir. 1969)). Plaintiffs argue that the applicable IACC specifications required inclusion of the Three Rivers powerline on Chart 13. In abbreviated fashion, the standards germane to this action read as follows: Chapter 3 9. E. Replacement Page 107 (6) Obstructions (a) all cultural features which extend 200 feet or more above surrounding terrain shall be considered as a “vertical obstruction”. 1 The obstruction symbol shall normally be shown for obstructions such as TV or radio towers, 200' or more above the terrain. Where several obstructions occur within close proximity one to the other, or within a limited area, only the values of the highest shall be shown with the group obstructions symbol. Minor obstructions which are not in critical locations shall be omitted in congested areas. 2 Examples of features considered a hazard to low level flight are tanks, factories, lookout towers, smoke stacks and elevated features such as cables or pipelines crossing rivers or valleys. These are extremely important because of the hazard to low level flight and the vertical dimension which facilitates identification at a distance. (b) Obstructions less than 200' in height should also be shown if the location is critical and chart congestion permits; for example, if the location on the ground" }, { "docid": "4958399", "title": "", "text": "negligence to be the “better law.” Decker v. Fox River Tractor, supra, at 1091-92. This case may be distinguished however, because the contacts with Wisconsin were substantially greater in that case than those present here. Also, neither party has shown this court that a different result would be reached as to the standard of care if Michigan law is applied rather than Wisconsin law. Neither party has indicated in any way that such a difference exists. Finally, the “better rule of law” factor is not to predominate or be determinative. Although a Wisconsin court would likely find comparative negligence to be the better rule, I conclude that in light of all five choice-influencing factors, a court under Wisconsin law could apply Michigan’s law of negligence to the instant case. A similar result may be reached as to applying Michigan rules to determine the damages plaintiffs may recover. Therefore this court will look to Michigan law on these matters. II. Displacement of the Tower on the Sectional Map. The Government admits in its pleadings that the tower in question “was in an offset location on the aeronautical chart.” That is, it was erroneously placed on the map. It contends, however, that such an error in location is not negligence, that the error was not a proximate cause of the accident, and that in.any event plaintiffs’ decedents were contributorily negligent in flying in such weather. The United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused. Murray v. United States, 327 F.Supp. 835 (D. Utah, 1971); Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala. 1968), aff’d, 411 F.2d 794 (5th Cir. 1969). The analysis of the Supreme Court in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), is applicable. “The Coast Guard need not undertake the lighthouse service. But onde it exercised its discretion to operate" }, { "docid": "439222", "title": "", "text": "exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a). Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken “to indicate on its sectional aeronautical charts which" }, { "docid": "14958537", "title": "", "text": "symbol employed. The symbol “L” applies to Birmingham and other major cities on the chart. These obviously have lights all night. Upon consulting the chart, one would likely assume that the Tuscaloosa airport having a common symbol would have common accommodations with respect to runway lights. By employing the letter “L” at Tuscaloosa to a situation where the lights are turned off after the last commercial flight, and to Birmingham where they burn continuously, the chart did not mean what it plainly indicated. The legend contained no cross reference that would direct the pilot’s attention to any qualification of the unadorned symbol “L”. The Airman’s Information Manual indicated that the unadorned “L” may have two meanings by stating that if the field was dark when the pilot arrived, he could obtain lights by circling the field. For many years a recognized and acceptable way for a night flying pilot to get the runway lights turned on has been to circle the field. For the pilot without a radio or a radio that has gone dead, circling the filed was the only way to get the runway lights on. The practice was formerly expressed in the Airman’s Information Manual. The negligent acts and omissions of the agent of the defendant made it impossible in this instance to carry out the policy which had been so set by the F. A. A. When the defendant, through its chart, undertook to supply vital information to pilots, it assumed the duty of discharging this function in a non-negligent manner. In Indian Towing Company v. United States, Supra, where due to the failure of the lights on Chandeleur Island the tug Navajo went aground, the Court said: “The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due" }, { "docid": "18731771", "title": "", "text": "All cultural features which extend 200 feet or more above surrounding terrain shall be considered as a “vertical obstruction.” 1 The obstruction symbol shall normally be shown for obstructions such as TV or radio towers 200' or more above the terrain. Where several obstructions occur within close proximity one to the other, or within a limited area, only the values of the highest shall be shown with the group obstruction symbol. Minor obstructions which are not in critical locations shall be omitted in congested areas. 2 Examples of features considered a hazard to low level flight are tanks, factories, lookout towers, smokestacks and elevated features such as cables or pipelines crossing rivers or valleys. These are extremely important because of the hazard to low level flight and the vertical dimension which facilitates identification at a distance. (b) Obstructions less than 200' in height should also be shown if the location is critical and chart congestion permits; for example, if location on the ground is much higher than the surrounding terrain or very near an airport. (R., Vol. Ill, p. 115 (emphasis added).) These specifications can be summarized as requiring obstructions to be depicted if they are 200 feet or more in height. Cartographers are encouraged, but not required, to show obstructions less than 200 feet in height if the location is critical and chart congestion permits. Plaintiffs contend that NOAA cartographers had a mandatory duty to depict the Buckskin Canyon cable on the Sectional Chart and their failure to do so constitutes actionable negligence not barred by the discretionary function exception. Plaintiffs urge us to adopt the reasoning of the district court in Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980), which considered the mandatory nature of depicting aerial obstructions on a Sectional Chart under facts almost identical to these. In Allnutt, plaintiffs brought suit against the United States for failing to chart or to depict a power line on a Sectional Chart. The relevant IACC specification the court considered required the following: “Power transmission lines, with pictorial pole (pylon) symbols, shall be shown on the chart to a density" }, { "docid": "439225", "title": "", "text": "administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The principle upon which section 2680(a) rests appeared early and succinctly in our jurisprudence, when Chief Justice John Marshall said: “It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction [to review the executive’s discretionary functions]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Unlike cases relied upon by plaintiffs to support their claim, we do not have here a situation where negligence has attended the mechanical preparation, as distinguished from the substance of the design, of an aeronautical chart. See, e. g., Reminga v. United States, 631 F.2d 449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing" }, { "docid": "937880", "title": "", "text": "took off with legal mínimums and had three miles visibility when 12 miles from the airport, deteriorating weather (mixed rain and snow) caused the pilot to descend further to be able to fly according to VFR. As he approached the point of collision, the top of the tower was hidden and the pilot was moving in and out of clouds. In this situation it was essential that the pilot know the correct location of obstructions to navigation. We cannot say the district court was clearly erroneous in finding that the issuance of the map which showed the location of the tower in the wrong place was the proximate cause of the crash. Though not required by law to do so, when the FAA arranges for the publication of aeronautical navigation charts and engenders reliance on them, it is required to use due care to see that they accurately depict what they purport to show. Failure to show the location of the tower accurately rendered the United States liable for injury to those who relied upon the chart. See Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955); Ingham v. Eastern Airlines, Inc., 373 F.2d 227, 236 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967). C. The government contends vigorously that recovery in this case is precluded by the Michigan rule of contributory negligence. The district court, applying Michigan law, recognized that at the time of the fatal crash contributory negligence was an absolute bar to recovery. The government contends the weather was so unsuitable for VFR flying that it was negligent to begin the trip, and negligent not to turn back when the weather worsened. However, the court found no contributory negligence. Since all three occupants of the plane were licensed pilots and there was evidence that more- than one engaged in inquiries about the weather before their departure, the court found that all participated in the decision to take off. Nevertheless, the court stated: “However, the weather is not the primary cause of this" }, { "docid": "14958535", "title": "", "text": "particulars; and as to the preparation and publication of the chart says that such acts would constitute a “misrepresentation” and would fall under the exception of Section 2680(h). Further that the placing of false information on the chart was a discretionary function and came within the exception of § 2680(a). Likewise, that the location of the insulation of the Flight Service Station is within the latter exception. Without attempting a detailed analysis of the authorities dealing with the exceptions set out in § 2680(a) and (h) of the Tort Claims Act, the Court is of the opinion that under the applicable authorities, the acts here complained of do not fall within the scope of the sections referred to. United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614; Wenninger v. United States, 234 F.Supp. 499, (aff’d 3rd Cir.) 352 F.2d 523; United Air Lines v. Wiener (9th Cir.) 335 F.2d 379; Somerset Sea Food Co. v. United States (4th Cir.) 193 F.2d 631; Ingham v. Eastern Air Lines (2d Cir.) 373 F.2d 227; Eastern Air Lines v. Union Trust Company (Court of Appeals, D.C.) 221 F.2d 62, affirmed 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796, on authority of Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; American Exchange Bank of Madison, Wis. v. United States (7th Cir.) 257 F.2d 938; Jemison v. The Duplex (So.Dist. of Ala.) 163 F.Supp. 947. The chart for the Tuscaloosa airport shows the unadorned symbol “L”. The legend on the chart explains this to mean “lighing available sunset to sunrise.” The legend further shows that if the “L” is preceded by an asterisk (*L), the symbol means “lighting available sunset to sunrise on prior request”. The legend does not tell the pilot that an airport showing a symbol “L” may not be lighted when he arrives during the night time. The explanation of the symbol “*L” by stating that one must request lighting at an airport so marked, suggests that no request of any kind is necessary where the unadorned “L” is the" }, { "docid": "404590", "title": "", "text": "LANGLEY, District Judge. Two men, passengers in a private airplane, were killed when the plane crashed at the Bryce Canyon Airport, in Utah, in an attempt by the pilot to obtain runway lighting at night by circling or buzzing the field. Their survivors filed this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), in the District Court for the District of Utah, claiming negligence of the government’s employees as the cause of the accident. From an adverse judgment, 327 F.Supp. 835, the United States has appealed. No contention is made that discretionary functions rather than operational are involved, and we think none is warranted. See Sullivan v. United States, 411 F.2d 794 (5th Circuit), affirming the case on the basis of the opinion of the District Court reported in 299 F. Supp. 621 (N.D.Ala.1969), and the eases therein cited. The appellant complains that it was denied a fair and impartial hearing by the trial judge, which we have considered and find to be without merit. It also maintains that interest on the awards to the survivors, if allowed to stand, should have been fixed at four percent rather than eight, as provided by 28 U.S.C. § 2411, which the appellees now concede. But primarily, the government contends that the evidence does not support the findings and conclusions of the trial court on the issue of liability. We do not agree. The passengers who died in the crash, Joe W. Murray and John Richard Droubay, together with the pilot of the plane, Don C. Kelley, who was also killed, left Provo, Utah, between 5:45 P.M. and 6:00 P.M. on November 8, 1969, in Kelley’s aircraft and arrived at the Bryce Canyon Airport around 7:00 P.M., after dark. The Federal Aviation Administration, an agency of the United States, maintains a flight service station at the airport which is attended full time. Aeronautical charts issued by the agency indicate that runway lights are available at night upon request, either by radio or by buzzing or circling the field. The duties of the attendant include looking and" }, { "docid": "12769892", "title": "", "text": "instant case chose to proceed with a program without warning of the actual or suspected hazards of the substance to which it might be exposing the public. “The evaluation of actual or suspected hazards, and the decision to proceed in a particular manner in light of those hazards, are protected discretionary acts, and not subject to tort claims in the district court.” Ford, 770 F.2d at 467 (citing George v. United States, 703 F.2d 90 (4th Cir.1983); Miller v. United States, 710 F.2d 656 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983)). “The decision not to issue a warning ... is the very type of policy decision § 2680(a) is designed to protect.” Id. at 468 (quoting Shirey v. United States, 582 F.Supp. 1251, 1258 (D.S.C.1984)). The instant case is not governed by the line of cases holding that once the government makes a policy decision protected by the discretionary function exception, it must proceed with due care in the implementation of that decision. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955) (The government was liable for the negligent operation of a lighthouse; the Coast Guard was not obligated to undertake the lighthouse service, “but once it exercised its discretion to operate the [lighthouse], it was obligated to use due care ... and to ... give warning that it was not functioning.”); Reminga v. United States, 631 F.2d 449 (6th Cir.1980) (the discretionary function exception did not apply to the government’s negligent preparation of a navigational chart; having undertaken to issue charts locating navigational hazards, the FAA was liable for doing so carelessly). The Navy did not decide to warn and then do so negligently. Rather, the Navy failed to take any action regarding warning the public. The Navy’s failure to warn of its alleged burial of the pyridine is a matter that is susceptible to the balancing of political, economic, and social factors. Arguably, it was negligent for the Navy policymakers to have failed to warn the public, but it is" }, { "docid": "439228", "title": "", "text": "sectional. In the dissent’s view, the lack of detail here amounts to an actionable breach of duty by the Government to warn of dangers. We do not believe, however, that the breach of duty in the course of the operational activities found actionable in those cases can be properly likened to the IACC’s discretionary design choices challenged here. It is important to note that plaintiff’s challenge goes only to the Wichita chart. And no defect is claimed in that chart apart from the IACC specifications to which it conforms. In actuality, the challenge applies to the design of all sectional charts. Viewed in its essence, plaintiffs’ claim is that the Wichita chart and all others like it should provide more detailed and hence more accurate information. Simply put, plaintiffs challenge the Wichita sectional chart because it was too sketchy. This challenge thus goes to the heart of the IACC’s deliberative and judgmental activities in designing and approving the extent of detail to be included in aeronautical sectional charts versus the extent of detail left to be gleaned from other sources that the prudent pilot can be expected to consult. Such design and approval activities or choices by the Government fall within the discretionary-function exception and are not actionable under the Federal Tort Claims Act. See, e. g., Reminga v. United States, 631 F.2d 449, 454-56 (6th Cir. 1980) (activity in designing FAA regulations that do not require lighting or other warning markers on tower guy wires); Wright v. United States, 568 F.2d 153, 154 (10th Cir. 1977) (activity of Interior Department in designing approach roads to bridge), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); First National Bank v. United States, 552 F.2d 370, 376 (10th Cir. 1977) (activity of Agriculture Department in devising warning labels for pesticides and investigating dangers connected with prior use of such pesticides); Miller v. United States, 522 F.2d 386, 387 (6th Cir. 1975) (failure to adopt more strict air safety regulations); Spillway Marina, Inc. v. United States, 445 F.2d 876, 878 (10th Cir. 1971) (policy decision to lower reservoir’s water" }, { "docid": "439221", "title": "", "text": "night landing capability shall be indicated by a short dash in lieu of the letter ‘L.’ “(f) The runway length shall be positioned below the airport name following lighting. Runway length shall be the actual length of the longest active runway (pavement, end to end), including displaced thresholds, but excluding those areas designated as overruns. Runway length shall be shown to the nearest 100 feet using 70 as the division point; e. g., 59 shall be used to indicate a runway of 5,870.” Rec., vol. V, at 94-95. The “PAUL WINDLE/2230-L-28” symbols on the Wichita sectional chart are in literal compliance with the quoted specifications. Lights were on sunset to sunrise and the longest runway was 2,800 feet. Nevertheless, plaintiffs contend that the Government should be liable for the chart’s failure to tell pilot Baird that the longest runway to which the “28” symbol referred was not the runway to which the lighting symbol “L” referred, and that the shorter runway was lit for only 2,176 of its 2,580 feet. They argue that the discretionary-function exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function" }, { "docid": "18731772", "title": "", "text": "(R., Vol. Ill, p. 115 (emphasis added).) These specifications can be summarized as requiring obstructions to be depicted if they are 200 feet or more in height. Cartographers are encouraged, but not required, to show obstructions less than 200 feet in height if the location is critical and chart congestion permits. Plaintiffs contend that NOAA cartographers had a mandatory duty to depict the Buckskin Canyon cable on the Sectional Chart and their failure to do so constitutes actionable negligence not barred by the discretionary function exception. Plaintiffs urge us to adopt the reasoning of the district court in Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980), which considered the mandatory nature of depicting aerial obstructions on a Sectional Chart under facts almost identical to these. In Allnutt, plaintiffs brought suit against the United States for failing to chart or to depict a power line on a Sectional Chart. The relevant IACC specification the court considered required the following: “Power transmission lines, with pictorial pole (pylon) symbols, shall be shown on the chart to a density short of over-congestion____” Id. at 838-39. Upon review of this specification, the court ruled that “the discretionary function exception does not apply to the mechanical preparation of charts when such preparation fails to con form to specific IACC standards of specification.” Id. at 838 (emphasis in original). We believe the Allnutt case can be distinguished from this case. Unlike the specification in the case at bar which states that obstructions less than 200 feet should also be shown, the specification for power transmission lines in Allnutt states that power transmission lines shall be shown. We agree with the Allnutt court that under the facts of that case, “there [was] no discretionary behavior in following the established IACC rules for inclusion of power lines in sectional aeronautical charts.” Id. at 838. The power line was required to be shown unless the chart would be over congested. In the case at bar the IACC specifications for charting obstructions less than 200 feet in height permitted the NOAA cartographers’ to exercise their judgment in determining whether or not" }, { "docid": "2853502", "title": "", "text": "negligent marking of the course for the race. Id. at 1106. Though the court found the decision to issue the permit was a discretionary act, the Court stated that had the government undertaken the responsibility to set out and mark the race course, such acts and decisions would have been operational, and not covered by the discretionary function exception. Id. at 1111. The charting of a race course is nearly identical to the charting of a mountain pass route. Pursuant to the Thompson authority, the charting of the course for the mountain pass route over the Kearsarge Pass was operational. If done negligently, the government can be liable for injuries proximately caused by its negligence. And a court can readily determine whether there was negligence in charting the course of the route by applying established standards of care in the aeronautical industry. The alleged negligence in the physical placing of the route on the sectional chart is also operational. The acts of the cartographers in physically placing the mountain pass route on the chart are true examples of day-to-day, operational level activities. Thus, the omission of the northerly route from the chart, the misleading placement of the altitude figure on the chart, and the misplacement of the blue diamonds on the chart, are all operational activities and the government can be liable for the alleged negligence. Numerous cases hold that in connection with aeronautical charts prepared, published and disseminated by the government, the government has a duty to truly and accurately represent those features it at tempts to portray, and that discharge of this duty does not fall within the discretionary function exception. Reminga v. United States, 448 F.Supp. 445, 460 (W.D.Mich. 1978), aff’d, 631 F.2d 449, 458-59 (6th Cir. 1980). Accordingly, the government is liable for negligence in the preparation, publication and circulation of an erroneous or misleading sectional chart. Allnutt v. United States, 498 F.Supp. 832, 837 (W.D.Mo. 1980); Sullivan v. United States, 299 F.Supp. 621, 625-26 (N.D.Ala.1968), aff’d. 411 F.2d 794 (11 Cir. 1969). Thus, the government has been held liable for charting a television broadcasting tower" }, { "docid": "1520734", "title": "", "text": "lighted runway or that symbols be adopted and used to show a limitation on lighting other than the times of operation and general availability.” Baird v. United States, slip op. at p. 6. Thus, the thrust of plaintiffs’ complaint in Baird was that the government through the IACC had failed to develop sufficiently comprehensive policies for inclusion of visual flight information. And the Court concluded that “[i]t would appear suit against the United States cannot be maintained on the claim that it failed to enact a more comprehensive set of air safety regulations.” Id. Here, plaintiffs are not challenging the sufficiency of the IACC specifications. Rather, plaintiffs contend that the personnel within the ACD failed to properly adhere to the established IACC specifications in the preparation of Chart 13. As such, this Court finds that the discretionary function exception does not apply to the mechanical preparation of aeronautical charts when such preparation fails to conform to specific IACC standards or specifications. At such a basic level, there is no discretionary behavior in following the established IACC rules for inclusion of power lines on sectional aeronautical charts. See generally, Reminga v. United States, supra; In re Air Crash Disaster Near Silver Plume, Colo., 445 F.Supp. 384, 402-404 (D.Kan. 1977). III. NEGLIGENCE Jurisdiction having been established, this Court must now determine whether there was any operational level negligence in the preparation of Chart 13. This Court initially observes that “[t]he United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused.” Reminga v. United States, supra, 448 F.Supp. at 460 (citing Murray v. United States, 327 F.Supp. 385 (D.Utah 1971); and Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala.1968) aff’d. 411 F.2d 794 (5th Cir. 1969)). Plaintiffs argue that the applicable IACC specifications required inclusion of the Three Rivers powerline on Chart 13. In abbreviated fashion, the standards germane to this action read as follows:" }, { "docid": "439226", "title": "", "text": "449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply. From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita" } ]

[ { "docid": "22688426", "title": "", "text": "instant case, HOME’S complaint contained the following claims of injury to the organization: “Plaintiff HOME has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices.” App. 17, ¶ 16. If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests, see Sierra Club v. Morton, 405 U. S., at 739. We therefore conclude, as did the Court of Appeals, that in view of HOME’S allegations of injury it was improper for the District Court to dismiss for lack of standing the claims of the organization in its own right. IV Petitioners argue that even if respondents do have standing to sue under the Fair Housing Act, their claims are time-barred under § 812(a) of the Fair Housing Act, 42 U. S. C. § 3612(a). That section requires that a civil suit be brought within 180 days after the alleged occurrence of a discriminatory housing practice. As petitioners note, although five different specific incidents allegedly in violation of the Fair Housing Act are detailed in the complaint, the four involving Coleman occurred more than 180 days before the complaint was filed, and the fifth, which was within 180 days of filing, involved only Coles, whose claims are already the subject of a consent order entered by the District Court. The Court of Appeals, adopting a “continuing violation” theory, held that because the Coles incident fell within the limitations period, none of the claims was barred. We agree with the Court of Appeals that for purposes of § 812(a), a “continuing violation” of the Fair Housing Act should be treated differently from one" } ]

[ { "docid": "6454901", "title": "", "text": "the legalization process and to assist them in obtaining documentation. It also receives applications and fees from aliens and is reimbursed by the INS for counseling and filing services. MRS alleges that the defendants’ behavior has discouraged otherwise eligible SAW applicants from seeking counseling and/or filing their claims and MRS is prevented from fulfilling its basic mission of assisting aliens to qualify under IRCA. Id. at 1118. In Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Supreme Court addressed the standing of an organization, Housing Opportunities Made Equal (“HOME”), whose purpose was “ ‘to make equal opportunity in housing a reality in the Richmond Metropolitan Area.’ ” Id. at 368, 102 S.Ct. at 1118 (quoting App. at 13, 118). The organizational plaintiff’s activities included operation of a housing counseling service and the investigation and referral of complaints of housing discrimination. 455 U.S. at 368, 102 S.Ct. at 1118. The Court found that: “If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests....” Id. at 379, 102 S.Ct. at 1124. The plaintiff HOME’S complaint alleged simply that it “has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices.” Id. at 379, 102 S.Ct. at 1124. In Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C.Cir.1986), the court, recognizing the standard set by the Supreme Court in Havens, found that the appellant, whose function was, through informational, counseling, referral, and other services, to improve the lives of elderly citizens, had sufficient standing to press its claim. As in the case before this" }, { "docid": "22425423", "title": "", "text": "indicated that Combs discriminated against black applicants. I. Whether Fair Housing Has Standing. We review the district court’s decision regarding standing de novo. Harris v. Itzhaki, 183 F.3d 1043, 1049 (9th Cir.1999) (citing San Pedro Hotel Co., Inc. v. City of L.A., 159 F.3d 470, 474-75 (9th Cir.1998); and Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997)). Whether a community fair housing organization has standing to sue a private party for violations of the Fair Housing Act is a question of first impression for this circuit. Fair Housing claims first-party standing as an organization on the grounds of diversion of resources and frustration of mission. The Supreme Court set out the standard for organizational first-party standing in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), holding that Congress intended standing under the Fair Housing Act to extend to the full limits of Article III. In Havens, a fair housing organization called Housing Opportunities Made Equal (HOME) and two of its employed testers brought an action against Havens Realty, the owner of an apartment complex. The plaintiffs alleged that Havens Realty engaged in racial steering in violation of § 3604(d) of the Fair Housing Act. Racial steering is the “practice by which real estate brokers and agents preserve and encourage patterns of racial segregation in available housing by steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups.” Havens, 455 U.S. at 367 n. 1, 102 S.Ct. 1114. (citation omitted). The Court found that HOME suffered an injury sufficient to confer standing. Id. at 379, 102 S.Ct. 1114. HOME devoted significant resources to identifying and counteracting Havens Realty’s discriminatory steering practices, and this diversion of resources frustrated the organization’s counseling and referral services. The Court concluded that “[s]uch concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s" }, { "docid": "13959531", "title": "", "text": "counseling or educational programs to legal efforts aimed at combating discrimination, such as monitoring and investigation, is itself sufficient to constitute an actual injury [where] traceable to some act of the defendant”); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir.1993); Hooker v. Weathers, 990 F.2d 913, 915 (6th Cir.1993). Indeed, the district court rejected defendants’ motion to dismiss and their motion for summary judgment based on lack of standing. Defendants argue, however, that a fair housing organization cannot recover damages when the only unlawful conduct proved at trial was suffered by the organization’s own agents. Thus, defendants assert, the Center cannot seek damages based on injuries traceable to their unlawful conduct toward the Center’s own testers. We disagree, and conclude that the district court’s jury instruction — which indicated that the Center could recover only if one of the individual plaintiffs prevailed — constitutes reversible error. There can be no debate that under the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), a fan-housing organization has standing to sue when the defendant’s racial steering practices impair the organization’s ability to provide housing counseling and referral services. In Havens, three individual plaintiffs and testers, along with an organization called HOME, a nonprofit corporation whose purpose was to “make equal opportunity in housing a reality in the Richmond Metropolitan area,” sued for violation of the Fair Housing Act. Id. at 368, 102 S.Ct. 1114. HOME’S activities included investigation and referral of complaints concerning housing discrimination. Id. HOME alleged broadly that defendant Havens Realty Corp.’s steering practices had frustrated HOME’S activities as to housing counseling and referral services, with a consequent drain on resources. Specifically, HOME attempted to bring suit against Havens on its own behalf because it “has been frustrated by the defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the de fendant’s racially discriminatory steering practices.” Id. at 379, 102 S.Ct. 1114." }, { "docid": "3867823", "title": "", "text": "the prudential justiciability concerns of ripeness can act to bar consideration of the claim. We share with the district court the conclusion that the appellants lack Article III standing, at least on the present record; we are utterly convinced that their claim is not prudentially ripe. A. Article III Standing The starting point for our analysis of NTEU’s alleged injury under the standing rubric is the Supreme Court’s opinion in Havens Realty Corp. v. Coleman, supra. In Havens, the Court considered whether a nonprofit organization whose purpose was “to make equal opportunity in housing a reality in the Richmond Metropolitan Area” had standing to bring suit on its own behalf against a realty company for alleged violations of the Fair Housing Act. 455 U.S. at 368, 102 S.Ct. at 1118-19 (internal quotations omitted). The organization alleged that the defendant’s unlawful housing practices “frustrated” the organization’s efforts “to assist equal access to housing.” Id. at 379, 102 S.Ct. at 1124 (internal quotations omitted). Further, the organization alleged that it “had to devote significant resources to identify and counteract the defendant’s” unlawful housing practices. Id. (internal quotations omitted). Accepting these allegations as true, the Court concluded that the organization’s “ability to provide counseling and referral services for low- and moderate-income home-seekers” had been “perceptibly impaired,” thus creating an injury sufficient for purposes of standing. Id. According to the Court, “[s]ueh concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.” Id. Recently, the Supreme Court revisited the issue of organizational standing in Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991). There, the Court considered whether an organization whose primary purpose was to “implement a transportation policy for the Washington area that would ... reduc[e] the operations at National [Airport] and alleviate] noise, safety, and air pollution problems associated with such operations,” id. at 262, 111 S.Ct. at 2304-05, had standing to challenge the constitutionality of Congress’" }, { "docid": "8788583", "title": "", "text": "that section.” Id. Therefore, for purposes of its FHA action, ERC need only establish constitutional standing. As an organization, ERC can establish constitutional standing either “on its own behalf, or on behalf of its members.” Abigail Alliance for Better Access to Developmental Drugs, 469 F.3d at 132 (internal citations omitted). However, since ERC does not claim it has standing on behalf of its members, (Pl.’s Opp’n at 21-29), the Court will focus exclusively on ERC’s standing as an organizational plaintiff. Organizational plaintiffs can establish they suffered injury in fact traceable to the defendant’s conduct if a defendant’s actions “perceptibly impaired” the organization’s activities. Havens, 455 U.S. at 379, 102 S.Ct. 1114. Thus, in Havens, the Supreme Court held that an organizational plaintiff that assisted minorities in gaining equal access to housing established standing to challenge a real estate company’s “steering” away of minority renters. Id. The Court held that if, as alleged, the organization was required “to devote significant resources to identify and counteract” the company’s discrimination, the defendant’s steering practices had “perceptibly impaired [the plaintiffs] ability to provide counseling and referral services ..., [and] there can be no question that the organization suffered injury in fact.” Id.; see also Abigail Alliance for Better Access to Developmental Drugs, 469 F.3d at 133. Based on Havens, our Circuit Court has found an organizational plaintiff had standing to challenge a defendant’s discriminatory housing advertisements because the advertisements required the plaintiff to increase its “education and counseling ... to identify and inform minorities, steered away from defendants’ complexes by the challenged ads, that defendants’ housing is by law open to all.” Spann v. Colonial Village, Inc., 899 F.2d 24, 28-29 (D.C.Cir.1990). Additionally, “[ejducational programs might complementarily be necessary to rebut any public impression the advertisements might generate that racial discrimination in housing is permissible.” Id. Likewise, our Circuit Court held another organizational plaintiff providing counseling services had standing to challenge a defendant’s discriminatory actions that “might increase the number of people in need of counseling [and] ... may have reduced the effectiveness of any given level of outreach efforts.” Fair Employment Council of" }, { "docid": "6325185", "title": "", "text": "own behalf alleging that “it has been damaged by the frustration of its mission, and by having to divert resources that the ERC would have used to provide counseling, outreach and education, and referral services.” (First Am. Compl. IT 20.) Conceding that ERC has met the causation and redressability prongs of the standing analysis, Defendants contend only that frustration of an organization’s mission and diversion of its resources do not constitute concrete injuries sufficient to confer standing on a plaintiff. For the reasons that follow, I find that ERC has satisfied Article Ill’s constitutional standing requirements. An organizational plaintiff suing on its own behalf, like an individual, must satisfy the familiar elements of injury-in-fact, causation, and redressability to establish Article III standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (“In determining whether [an organizational plaintiff] has standing under the Fair Housing Act, we conduct the same inquiry as in the case of an individual.”). While it is true that “an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III,” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), it is also settled that an organization not directly targeted by a defendant’s discriminatory practices can still have standing to sue on its own behalf. In Havens, the seminal Supreme Court case regarding organizational standing, a non-profit organizational plaintiff alleged that it had “been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services” and that it “had to devote significant resources to identify and counteract the defendants’ racially discriminatory steering practices.” 455 U.S. at 379, 102 S.Ct. 1114. Defendants in that case challenged the organization’s standing to sue on its own behalf and argued that these injuries (i.e., frustration of mission and diversion of resources) did not amount to an injury-in-fact. The Court, however, held otherwise: If, as broadly alleged, petitioners’ steering practices have perceptibly impaired" }, { "docid": "6325186", "title": "", "text": "subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III,” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), it is also settled that an organization not directly targeted by a defendant’s discriminatory practices can still have standing to sue on its own behalf. In Havens, the seminal Supreme Court case regarding organizational standing, a non-profit organizational plaintiff alleged that it had “been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services” and that it “had to devote significant resources to identify and counteract the defendants’ racially discriminatory steering practices.” 455 U.S. at 379, 102 S.Ct. 1114. Defendants in that case challenged the organization’s standing to sue on its own behalf and argued that these injuries (i.e., frustration of mission and diversion of resources) did not amount to an injury-in-fact. The Court, however, held otherwise: If, as broadly alleged, petitioners’ steering practices have perceptibly impaired [the organization’s] ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests. We therefore conclude ... that in view of [the organization’s] allegations of injury it was improper for the District Court to dismiss for lack of standing the claims of the organization in its own right. Id. Two recent decisions from this court confirm this core principle of Havens in the ADA context. In Equal Rights Center v. AvalonBay Communities, Inc., the organizational plaintiff alleged that the defendant’s failure to comply with the FHA and ADA directly injured the organization in a way identical to the injury alleged in the current case, namely “by the frustration of its mission and by having to divert significant resources that the ERC would have used to provide counseling, education and referral services.” No. AW-05-2626," }, { "docid": "16434865", "title": "", "text": "Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C.Cir.2006). The ERC asserted organizational standing only, which requires it, like an individual plaintiff, to show “actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Spann, 899 F.2d at 27. To accomplish this, the ERC must point to a “concrete and demonstrable injury to [its] activities”; a mere “setback” to its “abstract social interests” is not sufficient. Id. (alteration in original) (internal quotation marks omitted). An organization’s expenditure of resources on a lawsuit does not constitute an injury in fact sufficient to establish standing. Id. Otherwise, the very act of bringing a case would confer standing “and Article III would present no real limitation.” Id. The United States Supreme Court has made clear, however, that if the defendant’s allegedly wrongful action prompts an organization to “increase[] the resources [it] must devote to programs independent of its suit” against the defendant, the organization has shown an injury in fact. Id. (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114). In Havens, an organization promoting equal housing alleged that the defendant real estate company’s discriminatory practice of “steering” away black renters “had frustrated the organization’s counseling and referral services, with a consequent drain on resources,” 455 U.S. at 369, 102 S.Ct. 1114, because it forced the organization “to devote significant resources to identify and counteract the ... racially discriminatory steering practices.” Id. at 379, 102 S.Ct. 1114 (internal quotation marks omitted). The Supreme Court concluded that the organization’s allegations, if proven, constituted a sufficient injury in fact based on the defendant company’s having “perceptibly impaired” the organization’s ability to provide counseling and referral services. Accordingly, the Court affirmed the Fourth Circuit’s reversal of the district court’s dismissal for lack of standing. Id. at 378-79, 102 S.Ct. 1114. Addressing the issue ourselves in Spann, we held that two organizations promoting fair housing had standing to sue a real estate company, its wholly-owned subsidiary and an advertising agency for running allegedly discriminatory advertisements. 899 F.2d at 25-31. The plaintiff organizations claimed" }, { "docid": "22211629", "title": "", "text": "advertised rental units to determine if certain landlords were engaged in racially discriminatory steering. Id. at 368, 102 S.Ct. 1114. As part of its investigation, HOME sent two testers to inquire about rental properties owned by Havens Realty Corporation (“Havens”). Id. The African-American tester was incorrectly told that certain apartments were not available. Id. Simultaneously, the Caucasian tester was told that the very same apartments were available. Id. HOME sued Havens for housing discrimination, alleging that it had standing to sue in its own right and on behalf of its constituents. Id. HOME claimed it had itself been injured because Havens’ conduct “frustrated the organization’s counseling and referral services, with a consequent drain on resources.” Id. The Supreme Court agreed. The Court reasoned that where an organization’s ability to provide its primary services has been “perceptibly impaired,” the organization has personal standing to attempt recover for its injuries. Id. at 379, 102 S.Ct. 1114. HOME asserted that it had “been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services.” Id. That was sufficient to allege an Article III injury. The Court explained: “[s]uch concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback in the organization’s abstract social interests.” Id. Specifically, HOME’S complaint included an allegation that it “[had] to devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices.” Id. (brackets in original). The additional expense and the need to counteract Havens’ allegedly discriminatory conduct was a sufficiently particularized and concrete injury to confer standing upon HOME. Id. We elaborated on Havens Realty in Montgomery Newspapers. There, the defendants raised the same issues raised in Havens Realty, but on a motion for sum mary judgment. 141 F.3d at 73. The plaintiff there was a nonprofit organization that worked “to educate and promote fair housing and to oppose segregation based on the protected classes found in the Fair Housing Act of 1968, as amended.” Id. In an effort to advance that objective, the" }, { "docid": "22211526", "title": "", "text": "of data on’ alleged racial disparities in application of disciplinary measures, segregation by race and ‘under achievement of African American students in the [Lower Mer-ion] District’; • The ‘organization’ of educational, career, standardized test, financial aid, and college preparatory seminars. TAC at 25-26; J.A. vol. 9, at 3871-72. Even if all of these expenditures were legitimate, CBP has not established organizational standing. An organization may establish a “concrete and demonstrable injury” sufficient to confer standing if a defendant’s actions “perceptibly impair” the organization’s ability to provide services. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). In Havens, the Supreme Court determined that a nonprofit organization formed to promote equal housing through counseling and referral services had standing to bring an action charging that operators of rental housing units had “steered” potential tenants to certain properties based on race. HOME alleged that its mission had been frustrated because it had to devote significant resources to identify and counteract the defendants’ racial steering. The Supreme Court held that these allegations, if proven, would constitute an injury in fact, and thus HOME had standing to sue on its own behalf because the defendants’ practices had impaired its ability to provide services. Id. at 379, 102 S.Ct. at 1124. However, organizations may not satisfy the injury in fact requirement by making expenditures solely for the purpose of litigation, Fair Hous., 141 F.3d at 75, nor by simply choosing to spend money fixing a problem that otherwise would not affect the organization at all. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “It must instead show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. CBP has failed to show how LMSD’s actions have “perceptibly impaired” its mission. CBP’s very purpose relates to actions directly involving LMSD, and its expenditures were devoted to protecting students’ interests in their interactions with LMSD. In Havens, HOME’S purpose was to promote equality in the Richmond area overall and" }, { "docid": "1305492", "title": "", "text": "fairly traceable to the defendant’s challenged action; and (3) injury likely redressable by a favorable court decision. Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An organization may show standing to bring a suit under two theories: standing in its own right or representational standing, based on the fact that members it represents have been harmed. Maryland Highways Contractors Ass’n., Inc. v. State of Maryland, 933 F.2d 1246, 1250 (4th Cir.1991) (citations omitted). ERC asserts that it has standing in its own right to bring this suit and thus must satisfy the three-prong test discussed above. Havens Realty Corporation v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), is the seminal case regarding organizational standing, at least under the Fair Housing Act (“FHA”). In that case, the Court stated: . If, as broadly alleged, petitioner’s steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests .... Id. at 379,102 S.Ct. 1114. ERC claims that it has been injured because it spent money investigating the Defendant’s alleged discriminatory practices and because in doing so it diverted resources from its “usual testing, education, counseling, and referral services.” Paper no. 5, ¶ 60; paper no. 10 at 27. ERC appears to allege that it suffered injury as a result of having to divert its resources from its other programs to investigate Defendant’s alleged discrimination. At least one court of appeals has questioned whether such self-inflicted injury is sufficient to constitute injury in fact for purposes of Article III standing. Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268 (D.C.Cir.1994). In BMC, the plaintiffs goal included promoting equal opportunity in employment. To accomplish its" }, { "docid": "22425429", "title": "", "text": "investigating and confirming defendant’s discriminatory practices); Vill. of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir.1990) (holding that fair housing organization had standing to sue real estate brokerage for violations of Fair Housing Act. “[T]he only injury which need be shown to confer standing on a fair-housing agency is deflection of the agency’s time and money from counseling to legal efforts directed against discrimination.”); Ark. ACORN Fair Hous., Inc. v. Greystone Dev., Ltd. Co., 160 F.3d 433 (8th Cir.1998) (acknowledging that “the deflection of an organization’s monetary and human resources from counseling or educational programs to legal efforts aimed at combating discrimination, such as monitoring and investigation, is itself sufficient to constitute an actual injury [where] traceable to some act of the defendant” (citations omitted) but finding that plaintiff did not show specific facts establishing distinct and palpable injuries fairly traceable to defendant’s advertisements); and Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., Inc., 236 F.3d 629 (11th Cir.2000) (fair housing organization has standing to recover in its own right for the diversion of its resources to combat the defendant’s discrimination). In this Circuit, an analogous case is El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742 (9th Cir.1991). In El Rescate, individuals and a legal services organization, El Rescate, brought a class action against the Executive Office of Immigration Review, challenging its policy for failure to provide full translation of deportation and exclusion hearings. This Court, applying Ha vens, held that “[t]he allegation that the EOIR’s policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.” Id. at 748 (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114). Following the lead of the other circuits which have upheld organizational standing for fair housing groups, it is not necessary here to conflict with those cases which suggest that litigation expenses alone do not establish standing. Plaintiff Fair Housing of Marin responded to citizen complaints against Combs, and alleged injury" }, { "docid": "10476248", "title": "", "text": "to those made by the four organizational plaintiffs in this case were sufficient to establish injury in fact. In the leading Supreme Court case about organizational standing, Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Court held that the plaintiff organization—a housing counseling organization that promoted integrated housing called Housing Opportunities Made Equal (“HOME”)—had standing to challenge the racially discriminatory steering practices of the defendant real estate agency. In reaching that conclusion, the Court stated: If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources— constitutes far more that simply a setback to the organization’s abstract social interests. Id. 455 U.S. at 379, 102 S.Ct. at 1124. Similarly, in Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C.Cir.1986) the D.C. Circuit held that an organization which relied on the government’s dissemination of certain information to accomplish its own counseling, referral services and information dissemination had standing to challenge government regulations which reduced the amount of information disseminated by the government. In finding that the plaintiff satisfied the injury in fact requirement, the Court emphasized that: Unlike the ‘mere interest in a problem’ or ideological injury in Sierra Club [v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636], the AASC organizations have alleged inhibition of their daily operation, an injury both concrete and specific to the work in which they are engaged. Id. 789 F.2d at 938. In both Havens Realty and Action Alliance, the plaintiff alleged both a drain on its organizational resources and that it was hindered by the challenged activity in meeting its organizational goals. As was the case in both Havens Realty and Action Alliance, the INS’ narrow con struction of the statute has markedly impaired the plaintiff-organizations’ ability to perform its core functions and to achieve its organizational goals. This" }, { "docid": "22425430", "title": "", "text": "of its resources to combat the defendant’s discrimination). In this Circuit, an analogous case is El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742 (9th Cir.1991). In El Rescate, individuals and a legal services organization, El Rescate, brought a class action against the Executive Office of Immigration Review, challenging its policy for failure to provide full translation of deportation and exclusion hearings. This Court, applying Ha vens, held that “[t]he allegation that the EOIR’s policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.” Id. at 748 (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114). Following the lead of the other circuits which have upheld organizational standing for fair housing groups, it is not necessary here to conflict with those cases which suggest that litigation expenses alone do not establish standing. Plaintiff Fair Housing of Marin responded to citizen complaints against Combs, and alleged injury beyond litigation expenses. The district court stated that one of [Fair Housing’s] activities in combating illegal housing discrimination is to provide “outreach and education to the community regarding fair housing.” Complaint, ¶ 5. [Fair Housing] alleges that, as a result of defendant’s discriminatory practices, it has “suffered injury to its ability to carry out its purposes ... [and] economic losses in staff pay, in funds expended in support of volunteer services, and in the inability to undertake other efforts to end unlawful housing practices.” Id. Thus, fairly construed, [Fair Housing] complains that defendant’s discrimination against African Americans has caused it to suffer injury to its ability to provide outreach and education (i.e., counseling). The record supports the district court’s finding that Fair Housing’s resources were diverted to investigating and other efforts to counteract Combs’ discrimination above and beyond litigation. Fair Housing itemized its claim of $16,317 for diversion of resources, and the district court granted $14,217. With respect to frustration of mission, the district court found that Fair Housing suffered $10,160 in frustration of mission" }, { "docid": "5155966", "title": "", "text": "entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). In their complaint plaintiffs assert for the VVA that [bjecause of defendants’ practices and policies challenged herein, VVA has had and will have to expend considerable financial resources to provide legal representation and legal advice on applications for recharacterization of discharge filed before the Discharge Review Boards and Boards for Correction of Military Records by veterans discharged for homosexual acts, homosexuality, or “homosexual tendencies.” This diversion of financial resources has hindered VVA in accomplishing its organizational goals by assisting veterans on other issues related to their military service. Complaint at ¶ 11. In the admittedly broad but unanimous decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Supreme Court outlined the requirements necessary. for an organization to attain standing. In that decision certain individuals and an organization sought to challenge a realty company’s alleged practice of “racial steering.” The organizational plaintiff was “ ‘a nonprofit corporation ... ’ whose purpose was ‘to make equal opportunity in housing a reality in the Richmond Metropolitan Area.’ ... Its activities included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination.” Id. at 368, 102 S.Ct. at 1118-19. Quoting the complaint, the Court outlined what the organizational plaintiff alleged: “Plaintiff HOME has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to hous ing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sic ] racially discriminatory steering practices.” App. 17, 1116. Id. at 379, 102 S.Ct. at 1124. The Court then concluded that [i]f, as broadly alleged, petitioners’ steering practices have perceptively impaired HOME’S ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources" }, { "docid": "10476247", "title": "", "text": "case for organizational standing. Nevertheless, the defendants contend that “[t]he organizational plaintiffs are not within the scope of the statute and have not suffered injury for standing purposes.” Defendants’ Brief at 22. In order to establish standing to sue, an organization must satisfy both constitutional and prudential requirements. The D.C. Circuit has summarized the standard as follows: To establish standing to challenge an agency’s handling of its affairs a plaintiff must plausibly (1) allege injury in fact derived from the agency’s action or inaction and remediable by the court’s order, and (2) assert that the injury is arguably within the zone of interests protected or regulated by the law on which the the complaint is founded. Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 936 (D.C.Cir.1986). See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982); Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 259 (D.C.Cir.1983). Numerous courts have held that allegations strikingly similar to those made by the four organizational plaintiffs in this case were sufficient to establish injury in fact. In the leading Supreme Court case about organizational standing, Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Court held that the plaintiff organization—a housing counseling organization that promoted integrated housing called Housing Opportunities Made Equal (“HOME”)—had standing to challenge the racially discriminatory steering practices of the defendant real estate agency. In reaching that conclusion, the Court stated: If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources— constitutes far more that simply a setback to the organization’s abstract social interests. Id. 455 U.S. at 379, 102 S.Ct. at 1124. Similarly, in Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C.Cir.1986) the D.C. Circuit" }, { "docid": "18938115", "title": "", "text": "” requires that the plaintiff demonstrate that he or she “has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett, 520 U.S. at 162, 117 S.Ct. 1154 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The Supreme Court applied these criteria in an organizational standing context in Havens Realty. See 455 U.S. at 378-79, 102 S.Ct. 1114. In that case, Housing Opportunities Made Equal (HOME), an organization operating a housing counseling service, sued Havens Realty Corporation for allegedly engaging in racial steering practices in violation of § 804 of the Fair Housing Act of 1968, 42 U.S.C. § 3604. See id. at 366-67, 102 .S.Ct. 1114. HOME’S complaint alleged: Plaintiff HOME has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sicJ racially discriminatory steering practices. Id. at 379, 102 S.Ct. 1114' (alteration in original). The district court granted Havens Realty Corporation’s motion to dismiss on standing grounds. ■ See id. at 369, 102 S.Ct. 1114. The Fourth Circuit reversed, holding that HOME’S allegation of injury was sufficient, at the pleading stage, to satisfy the standing requirements. See id. at 369-70,102 S.Ct. 1114. The Supreme Court affirmed the Fourth Circuit’s determination that HOME had standing. See id. at .379, 102 S.Ct. 1114. The Court found HOME’S allegations of injury, causation, and redressability sufficient to establish organizational standing, stating: If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income .homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources— constitutes far more than simply a setback to the organization’s abstract social interests, see Sierra Club v. Morton, 405 U.S. [727,] 739," }, { "docid": "5155967", "title": "", "text": "‘a nonprofit corporation ... ’ whose purpose was ‘to make equal opportunity in housing a reality in the Richmond Metropolitan Area.’ ... Its activities included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination.” Id. at 368, 102 S.Ct. at 1118-19. Quoting the complaint, the Court outlined what the organizational plaintiff alleged: “Plaintiff HOME has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to hous ing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sic ] racially discriminatory steering practices.” App. 17, 1116. Id. at 379, 102 S.Ct. at 1124. The Court then concluded that [i]f, as broadly alleged, petitioners’ steering practices have perceptively impaired HOME’S ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests ____ Id. Courts that have applied the Havens Realty standard have stressed the two-fold nature of organizational standing. The court in Minority Employees v. Tennessee, 573 F.Supp. 1346 (M.D.Tenn.1983), for example, noted that [wjhen an organization alleges that it has been hindered by a defendant in its efforts to assist others to obtain constitutional or statutory rights and that it has had to devote significant resources to counteract a defendant’s actions, it has alleged a sufficient injury to itself to establish standing. Id. at 1349 (emphasis added). See also Davis v. Mansards, 597 F.Supp. 334, 343 (N.D.Ind.1984). Although plaintiff VVA is able to allege that it has incurred a drain on its organizational resources, no allegation is made that it has been hindered in effecting its organizational goals. Actual interference with the implementation of the VVA’s programs must also be claimed before sufficient injury is present for standing purposes. A mere depletion of resources in asserting claims of allegedly illegal activity" }, { "docid": "17997624", "title": "", "text": "individual plaintiff had standing, Havens, 455 U.S. at 374, 102 S.Ct. 1114, the Supreme Court went on to rule that HOME had standing as well, id. at 379, 102 S.Ct. 1114. That is unsurprising because the Fair Housing Act specifically defines the “persons” entitled to truthful housing information to include “associations” as well as “one or more individuals.” 42 U.S.C. § 3602(d). HOME had also identified how the discriminatory misinformation it was given about housing opportunities directly frustrated and unraveled its efforts to match individuals with available housing. In particular, HOME alleged that the challenged racial steering practices “frustrated * * * its efforts to assist equal access to housing through counseling and other referral services,” and forced it “to devote significant resources to identify and counteract” the unlawful conduct targeted at it. Havens, 455 U.S. at 379, 102 S.Ct. 1114. The Supreme Court concluded that, because the alleged practices had “perceptibly impaired [the group’s] ability to provide counseling and referral services,” the organization had plainly suffered an injury in fact. Id. That “concrete and demonstrable injury to the organization’s activities” and “consequent drain on the organization’s resources,” the Court stressed, represented “far more than simply a setback to the organization’s abstract social interests,” which could not have conferred standing. Id. Havens ’ recognition of HOME’S organizational standing makes sense. Federal law vested HOME with a specific legal right to truthful, non-diseriminatory housing information, and Havens Realty’s racially disparate misinformation targeted HOME along with the individuals it was aiding. The apartment owner’s violations unraveled again and again the .work and resources that HOME had put into providing housing and equal housing opportunities for its clients. Put simply, what HOME used its own resources, information, and client base to build up, Havens Realty’s racist lies tore down. That is the type of direct,’ concrete, and immediate injury that Article III recognizes. See Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n. 1 (6th Cir.2014) (Havens involved a statutory entitlement to truthful information, and “[t]he misinformation provided by the Havens defendants, i.e.[,] a lie told to black renters, including a member" }, { "docid": "7650783", "title": "", "text": "it has expended resources to educate its members and others regarding [a challenged statutory provision] does not present an injury in fact,” particularly if “[t]here is no evidence that [the challenged provision] has subjected [the association] to operational costs beyond those normally expended to review, challenge, and educate the public.” Nat’l Taxpayers Union, 68 F.3d at 1434. Nor is standing found “when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005). The petitioners support ASA’s organizational standing by relying on Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In Havens, a nonprofit corporation sued the owner of an apartment complex for damages under the Fair Housing Act because “the [discriminatory] practices of [the apartment complex] had frustrated the organization’s counseling and referral services, with a consequent drain on resources.” Id. at 369, 102 S.Ct. 1114. The Supreme Court upheld the nonprofit’s standing because the “practices have perceptibly impaired [its] ability to provide counseling and referral services for low- and moderate-income homeseekers.... Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.” Id. at 379, 102 S.Ct. 1114. We considered a similar standing issue in Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C.Cir.1990), where we found two organizations had standing to assert a claim for injunctive relief and damages under the Fair Housing Act because the discriminatory conduct “required [plaintiffs] to devote more time, effort, and money to endeavors designed to educate not only black home buyers and renters, but the D.C. area real estate industry and the public that racial preference in housing is indeed illegal.” Id. at 27; see also id. at 28-29 (“increased education and counseling could plausibly required”). We emphasized “the difference between this suit and one presenting only abstract concerns or complaints about government policy;” specifically, the plaintiffs “do not seek to compel government action, [or]" } ]

[ { "docid": "9369803", "title": "", "text": "be denied. The district court adopted the report without modification. .Carter then applied to the district court for a certificate of appealability. Concluding that Carter had made a substantial showing of a denial of a constitutional right with respect to his Batson claim, the court issued a certificate of appealability on that issue, but denied Carter’s application with respect to all other issues. II. Although the district court clearly limited the scope of Carter’s certificate of appealability to the Batson issue only, Carter contends that he is entitled to argue other claims as well. Habeas appeal procedures were amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 1217-18 (April 24, 1996). Under the new procedures, we may not review an order in -a habeas proceeding involving a challenge to a detention arising out of process issued by state court unless a certificate of appealability is first issued. See- 28 U.S.C. ,§: 2253(c)(1)(A). A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Moreover, the certificate must specify which of the applicant’s claims satisfy the foregoing test. See 28 U.S.C. § 2253(c)(3). Because Carter’s notice of appeal, was filed well after the AEDPA’s effective date, his argument that the AED-PA’s requirement of a certificate of appealability is inapplicable in his case is foreclosed by our holding in Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir.1997). Alternatively, Carter contends that our review is not limited to those issues identified in the district court’s certificate of appealability and that we are free to consider any and all issues so long as a certificate has issued. This argument fails, however, in light of our recent holding that appellate review is limited to the issues specified in the certificate of appealability. See Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.1998) (citing Lackey v. Johnson, 116 F.3d 149 (5th Cir.1997)); see also Murray v. United States, 145 F.3d 1249 (11th Cir.1998). III. We turn, then, to Carter’s Batson" } ]

[ { "docid": "16448250", "title": "", "text": "evidence presented in the State court proceeding. Accordingly, the Court will grant Weddell’s § 2254 Petition on the Batson claim. E. Severance Weddell argues that he should have been granted a severance because his defense was irreconcilable with Honomichl’s defense. He argues, apparently by reference to the Federal Rules of Criminal Procedure, that the Constitution forbids joint criminal trials when the defenses are mutually antagonistic. The Supreme Court, however, has held that “[mjutually antagonistic defenses are not prejudicial per se.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). In this case, the defenses were not mutually antagonistic. Depending upon the jury’s assessment of Dr. Randall’s testimony about whether the right blow contributed to Caldwell’s death, the jury could have convicted Honomichl and not Weddell. The Court does not find that the South Dakota Supreme Court’s holding on the severance issue was contrary to or an unreasonable application of clearly established Federal law. F. Certificate of Appealability A prerequisite to an appeal from the denial of a § 2254 petition is a certificate of appealability under 28 U.S.C. § 2253(c). Such a certificate may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” See Fed. R.App. P. 22(b); 28 U.S.C. § 2253(c). A “substantial showing” under this section is a showing that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), or that “a court could resolve the issues different ly, or the issues deserve further proceedings,” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997). The Court does not find that Weddell has made a substantial showing of the denial of a constitutional right on any ground on which the Petition was not granted. Thus, a certificate of appealability will not be issued in this case. CONCLUSION Weddell is entitled to federal habeas relief on the claim that he was denied effective assistance of counsel when his attorney failed to retain an expert witness to" }, { "docid": "10841648", "title": "", "text": "to Garrett for up to six months prior to Garrett’s arrest. (Appellant’s App. at 247.) This court has previously noted that those who regularly sell crack cocaine are among the most knowledgeable experts on crack cocaine and that its distinctive appearance and form makes it easy to recognize. See Brown, 156 F.3d at 816. In this case, the district court did not clearly err in relying on the testimony of Henry to support the sentence received by Garrett. We now turn to Garrett’s request for a certificate of appealability. Garrett must make a substantial showing of the denial of a constitutional right in order to be granted a certificate of appealability on the remaining two issues. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997), cert. denied, 525 U.S. 834, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998). “A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Id. The severance issue was not asserted before the district court below as one of the five grounds for § 2255 relief, and the district court did not address it; accordingly, neither will we. The Singleton issue has been clearly foreclosed by this court in United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir.1999). We conclude that Garrett has failed to make the required showing justifying any further consideration on either point, and therefore, we decline to issue a certificate of appealability on the remaining points. Consequently, we affirm the district court’s denial of Garrett’s § 2255 motion and deny his request for a certificate of appealability. . The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri. . See United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), rev’d en banc, 165 F.3d 1297 (10th Cir.1999)." }, { "docid": "1563670", "title": "", "text": "review, it would have been pointless for Congress to go on to state, in section 2253(e)(3), that a COA “shall indicate which specific issue or issues satisfy” the substantial showing standard of section 2253(c)(2). This language was absent from section 2253’s previous incarnation, and the fact that Congress added it in the AED-PA signals an intent that the courts should accord some significance to it. The petitioner’s reading of the statute would render this phrase superfluous, for as long as one issue were certifiable, all others would be amenable to review. We customarily read statutes in a manner that gives effect to all words and phrases, see Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 117 S.Ct. 660, 664, 136 L.Ed.2d 644 (1997); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985), and we see no valid reason to deviate from this salutary practice here. Common sense also suggests that such an interpretation should be preferred. Were we to adopt the petitioner’s construction of the statute, we would establish a paradigm under which tenuous habeas claims could not be appealed if asserted on their own, but could command appellate attention if accompanied by a solitary claim that met the substantial showing standard. This dichotomy lacks rhyme or reason, and there is no indication that Congress intended to create so curious a structure. The better reading of the habeas amendments is one that links section 2253(e)(3)’s insistence on an issue by issue enumeration of what has been certified for appeal with the substantial showing requirement of section 2253(c)(2). We hold, therefore, that a court of appeals should not consider the merits of an issue advanced by a habeas petitioner unless a COA first has been obtained with respect to that issue. Accord Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1083, 143 L.Ed.2d 85 (1999); Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998); Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.1998); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997); In re Certificates of Appealability, 106 F.3d" }, { "docid": "1563671", "title": "", "text": "which tenuous habeas claims could not be appealed if asserted on their own, but could command appellate attention if accompanied by a solitary claim that met the substantial showing standard. This dichotomy lacks rhyme or reason, and there is no indication that Congress intended to create so curious a structure. The better reading of the habeas amendments is one that links section 2253(e)(3)’s insistence on an issue by issue enumeration of what has been certified for appeal with the substantial showing requirement of section 2253(c)(2). We hold, therefore, that a court of appeals should not consider the merits of an issue advanced by a habeas petitioner unless a COA first has been obtained with respect to that issue. Accord Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1083, 143 L.Ed.2d 85 (1999); Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998); Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.1998); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997); In re Certificates of Appealability, 106 F.3d 1306, 1308 (6th Cir.1997). Were the power to issue a COA exclusively a prerogative of the district courts, this holding might answer the procedural question that confronts us. Under the AED-PA amendments, however, a habeas petitioner who fails in his effort to obtain a COA in the district court may then beseech the court of appeals to issue one. See Fed. R.App. P. 22(b)(1) (“If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge.”). The procedure for cases in which the district court does not grant a COA at all is uncontroversial: even if there is no express request for a COA, the court of appeals must deem a notice of appeal to represent a request for a COA on all issues raised. See Fed. R.App. P. 22(b)(l)-(2). The rules are silent, however, with respect to the appropriate procedure in hybrid eases. Thus, we must decide what course a habeas petitioner should follow when the district court certifies some, but not" }, { "docid": "10841647", "title": "", "text": "201(c)(2) (the Singleton issue); and (3) the enhanced sentence he received for distribution of crack cocaine was invalid because the government failed to prove that the drug was crack cocaine. The district court granted a certificate of appealability only on the third point. Garrett asks this court to issue a certificate of appealability on the first two points as well. We review the district court’s findings as to the identity of the drug for clear error and will reverse “only if we are left with a definite and firm conviction that a mistake has been made.” United States v. Brown, 156 F.3d 813, 816 (8th Cir.1998). The district court relied on the testimony of Ross Henry that Garrett purchased both cocaine powder and crack cocaine from Henry. Garrett argues that the district court should not have relied on Henry’s testimony because there was no evidence demonstrating that Henry appreciated the difference between crack cocaine and powder cocaine. We disagree. The testimony showed that Henry had been selling both hard, crack cocaine and soft, powder cocaine to Garrett for up to six months prior to Garrett’s arrest. (Appellant’s App. at 247.) This court has previously noted that those who regularly sell crack cocaine are among the most knowledgeable experts on crack cocaine and that its distinctive appearance and form makes it easy to recognize. See Brown, 156 F.3d at 816. In this case, the district court did not clearly err in relying on the testimony of Henry to support the sentence received by Garrett. We now turn to Garrett’s request for a certificate of appealability. Garrett must make a substantial showing of the denial of a constitutional right in order to be granted a certificate of appealability on the remaining two issues. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997), cert. denied, 525 U.S. 834, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998). “A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Id. The severance issue was not asserted before the district court" }, { "docid": "3986084", "title": "", "text": "the jury to find beyond a reasonable doubt that Ramsey himself had deliberated, as Missouri law requires, see State v. Ferguson, 887 S.W.2d 585, 587 (Mo.1994), The instruction did not violate due process. See Kilgore v. Bowersox, 124 F.3d 985, 991 (8th Cir.1997); Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir.1994); see also Baker v. Leapley, 965 F.2d 657, 659 (8th Cir.1992) (per curiam) (to warrant federal habeas relief for state prisoner, instructional error must constitute a fundamental defect that results in a complete miscarriage of justice or renders the defendant’s entire trial unfair). Last, Ramsey contends the district court should have given him permission to raise fourteen more issues on appeal. In Ramsey’s view, the district court committed error' in granting him a certificate of appealability limited to eleven issues under 28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act. Although he initially requested a certificate of appealability and we remanded the question of the certificate’s issuance to the district court, Ramsey now asserts the district court should have given him an unlimited certificate of probable cause under the pre-Aet version of § 2253. Ramsey filed his habeas petition in December 1995 before the Act’s April 1996 effective date, and he asserts the Act does not govern habeas petitions filed before then. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2253 requires a state prisoner to obtain authorization from a district or circuit judge before appealing from the denial of a federal habeas petition. Before the Act, § 2253 required a state prisoner to obtain a certificate of probable cause. See 28 U.S.C. § 2253 (1994). The Act amended § 2253 to require a state prisoner to obtain a certificate of appealability. See 28 U.S.C.A. § 2253(c) (West Supp.1998). The same substantive standard governs issuance of the pre-Aet certificate of probable cause and the post-Act certificate of appealability. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir.1998); Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir.1997). Both certificates issue only" }, { "docid": "2257111", "title": "", "text": "Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.2000), cert. denied, 531 U.S. 1199, 121 S.Ct. 1207, 149 L.Ed.2d 120 (2001) (assuming without discussion that a COA is necessary to appeal the denial of a Rule 60(b) motion in a habeas case); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.), cert. denied, 519 U.S. 1036, 117 S.Ct. 604, 136 L.Ed.2d 530 (1996) (same). We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition. Kellogg is therefore required to obtain a COA to go forward with his appeal. We now address the merits of his motion for a COA. In order to obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is designed to permit an appeal to go forward only if the appeal has a threshold quantum of merit. In the context of a denial of a Rule 60(b) motion, a substantial showing that the district court abused its discretion indicates that the appeal has the threshold quantum of merit to go forward. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998), cert. denied, 526 U.S. 1146, 119 S.Ct. 2022, 143 L.Ed.2d 1033 (1999) (holding that the standard of review of a district court order granting or denying a Rule 60(b) motion is whether the order constituted an abuse of discretion). Accordingly, we hold, following the Supreme Court’s formulation in Slack, 529 U.S. at 484, 120 S.Ct. 1595, that a COA should issue only if the petitioner shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional right. See also Lynch v. Blodgett, 999 F.2d 401, 403 (9th" }, { "docid": "18954280", "title": "", "text": "F.2d 582, 584 (8th Cir.), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988); see State v. Malone, 694 S.W.2d 723, 728 (Mo.1985) (en banc), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986). In a non-weighing state such as Missouri, a finding of one valid aggravating circumstance renders harmless the conclusion that a second aggravating cir- eumstanee was constitutionally infirm. See Tokar v. Bowersox, 198 F.3d 1039, 1051 (8th Cir.1999), cert. denied, 531 U.S. 886, 121 S.Ct. 204, 148 L.Ed.2d 143 (2000); Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir.1995), cert. denied, 516 U.S. 1056, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996). At oral argument, Clay argued for the first time that this principle should not apply because the trial court’s instructions directed the jury to weigh the aggravating circumstances against the mitigating circumstances. This argument was not presented to the state courts or to the district court and thus was not preserved for federal habeas review. See Flieger v. Delo, 16 F.3d 878, 884 (8th Cir.), cert. denied, 513 U.S. 946, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994). D. Proportionality Review. Missouri law requires that the state supreme court review any death sentence to ensure that the State does not impose the death penalty disproportionately. See Mo. ANN. Stat. § 565.035. Clay argues that the proportionality review in this case denied him due process because the Supreme Court of Missouri cited only cases in which the death penalty was imposed. 975 S.W.2d at 146. This claim is without merit. Once the federal court determines, as we have here, that the Supreme Court of Missouri reviewed the sentence for proportionality, our inquiry is complete. See Zeitvogel v. Delo, 84 F.3d 276, 284 (8th Cir.), cert. denied, 519 U.S. 953, 117 S.Ct. 368, 136 L.Ed.2d 258 (1996). “The Constitution does not require us to look behind [a state supreme court’s proportionality] conclusion.” Walton v. Arizona, 497 U.S. 639, 656, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556" }, { "docid": "23525176", "title": "", "text": "required for the present appeal. A certificate may issue if Lambros has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2) (certificate standard); Garrett v. United States, 211 F.3d 1075, 1077 (8th Cir.) (per curiam) (“substantial showing” required for certificate is showing that is sues are debatable among reasonable jurists, court could resolve issues differently, or issues deserve further proceedings), cert. denied, 531 U.S. 908, 121 S.Ct. 254, 148 L.Ed.2d 184 (2000). When Lambros filed multiple new trial motions, after our limited remand for re-sentencing following his conviction, the district court correctly treated those new trial motions as seeking § 2255 postconviction relief. His subsequent Rule 60(b) motions and his most recent Rule 59(e) motion were, in reality, efforts to file successive motions for postconviction relief. Those motions were properly denied because Lambros did not have authorization from this court. Therefore, Lambros has not made a substantial showing of any error, much less constitutional error. Accordingly, we deny a certificate of appealability and dismiss the appeal. . The Honorable David S. Doty, United States District Judge for the District of Minnesota." }, { "docid": "23525175", "title": "", "text": "(including Eighth Circuit) are in accord on this issue). It is well-established that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by pm-porting to invoke some other procedure. United States v. Patton, 309 F.3d 1093 (8th Cir.2002) (per curiam) (collecting cases); see also Boyd v. United States, 304 F.3d 813, 814 (8th Cir.2002) (per curiam) (if Rule 60(b) motion is actually successive habeas petition, court should dismiss it for failure to obtain authorization from court of appeals, or in its discretion, transfer motion to court of appeals). Likewise, the certificate requirement under 28 U.S.C. § 2253(c)(1) may not be circumvented through creative pleading. A certificate of appealability is required to appeal the denial of any motion that effectively or ultimately seeks habeas corpus or § 2255 relief. Because Lambros’s Rule 59(e) motion, just like his previous Rule 60(b) motions, sought ultimately to resurrect the denial of his earlier § 2255 motion, we hold that a certificate of appealability is required for the present appeal. A certificate may issue if Lambros has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2) (certificate standard); Garrett v. United States, 211 F.3d 1075, 1077 (8th Cir.) (per curiam) (“substantial showing” required for certificate is showing that is sues are debatable among reasonable jurists, court could resolve issues differently, or issues deserve further proceedings), cert. denied, 531 U.S. 908, 121 S.Ct. 254, 148 L.Ed.2d 184 (2000). When Lambros filed multiple new trial motions, after our limited remand for re-sentencing following his conviction, the district court correctly treated those new trial motions as seeking § 2255 postconviction relief. His subsequent Rule 60(b) motions and his most recent Rule 59(e) motion were, in reality, efforts to file successive motions for postconviction relief. Those motions were properly denied because Lambros did not have authorization from this court. Therefore, Lambros has not made a substantial showing of any error, much less constitutional error. Accordingly, we deny a certificate of appealability and dismiss the appeal. . The" }, { "docid": "485383", "title": "", "text": "they are neither contrary to nor involve an unreasonable application of clearly established federal law as determined by the Supreme Court, nor are they based on an unreasonable determination of the facts in light of the evidence presented. Therefore, the state courts’ denial of habeas corpus relief to Russo must stand. Accordingly, Johnson’s motion for summary judgment is granted, and Russo’s motion for evidentiary hearing and petition for writ of habeas corpus are denied. Russo has failed to present a claim upon which relief can be granted. There are no outstanding issues of material fact, and Johnson is entitled to judgment as a matter of law. V. Certificate of Appealability Furthermore, Russo is not entitled to the issuance of a certifícate of appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; Fed.R.App.P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the petitioner to make a substantial showing of the denial of a federal constitu tional right. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000); Miller, 200 F.3d at 280; Davis v. Johnson, 158 F.3d 806, 809 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Whitehead v. Johnson, 157 F.3d 384, 386 (5th Cir.1998); Hallmark v. Johnson, 118 F.3d 1073, 1077 (5th Cir.), cert. denied, 522 U.S. 1003, 118 S.Ct. 576, 139 L.Ed.2d 415 (1997); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). In making that substantial showing, the petitioner need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 120 S.Ct. at 1603-04; Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383; Davis, 158" }, { "docid": "16448251", "title": "", "text": "petition is a certificate of appealability under 28 U.S.C. § 2253(c). Such a certificate may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” See Fed. R.App. P. 22(b); 28 U.S.C. § 2253(c). A “substantial showing” under this section is a showing that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), or that “a court could resolve the issues different ly, or the issues deserve further proceedings,” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997). The Court does not find that Weddell has made a substantial showing of the denial of a constitutional right on any ground on which the Petition was not granted. Thus, a certificate of appealability will not be issued in this case. CONCLUSION Weddell is entitled to federal habeas relief on the claim that he was denied effective assistance of counsel when his attorney failed to retain an expert witness to testify about the proximate cause of Caldwell’s death and on his Batson claim. Thus, Weddell is entitled to a new trial. A certificate of appealability will not be issued on any of the grounds or claims on which the Petition was not granted. Accordingly, IT IS ORDERED: 1. That petitioner, James Weddell’s, Petition for Writ of Habeas Corpus By Person In State Custody Pursuant to 28 U.S.C. § 2254, Doc. 1, is granted on that aspect of ground three involving petitioner’s claim that he was denied effective assistance of counsel when his attorney failed to retain an expert and on ground four involving his Batson claim and the Petition is denied in all other respects. 2. That the State of South Dakota shall commence proceedings to afford the petitioner, James Weddell, a new trial within 60 days of the date of this Order or release the petitioner from custody on the conviction and sentence challenged in this action. 3. That a certificate of appealability shall not issue on any of the grounds for relief on" }, { "docid": "15360981", "title": "", "text": "prejudice. See Ramsey v. Bowersox, 149 F.3d 749, 757 (8th Cir.1998) (concluding that trial court did not err in declining to ask veniremen counsel’s proposed questions where the district court’s questions provided opportunity to detect bias), cert. denied, 525 U.S. 1166, 119 S.Ct. 1083, 143 L.Ed.2d 85 (1999). We conclude that the district court conducted a constitutionally sufficient voir dire. III. Nelson argues that the district court erred in denying his motion for change of venue due to unduly prejudicial pretrial publicity. We review the denial of a motion for change of venue for an abuse of discretion. See United States v. Blom, 242 F.3d 799, 803 (8th Cir.2001), cert. denied, 534 U.S. 880, 122 S.Ct. 184, 151 L.Ed.2d 128 (2001). When a change of venue is requested due to pretrial publicity, we engage in a two-tiered analysis. First, we must determine whether the pretrial publicity was “so extensive and corrupting” that we must presume “unfairness of constitutional magnitude” existed. Id. (quoted sources and internal marks omitted). We note that “the presumption of inherent prejudice is reserved for rare and extreme cases,” id., and that a defendant “must satisfy a high threshold of proof in order to prove inherent prejudice,” Pruett v. Norris, 153 F.3d 579, 585 (8th Cir.1998). Second, if we were to determine that the pretrial publicity was not so corrupting as to warrant a presumption of unfairness, then we must look at the voir dire testimony of those who became trial jurors to determine if they “demonstrated such actual prejudice that it was an abuse of discretion to deny a timely change-of-venue motion.” Blom, 242 F.3d at 803. Nelson’s kidnapping, rape, and murder of Butler garnered substantial media attention in the Kansas City area. In support of his motion for change of venue, Nelson attached 177 pages of exhibits demonstrating the magnitude of media coverage surrounding this case. See Appellant’s App. at 24-200. Included is a report documenting the fact that 1037 television reports between October 12 and November 16, 1999, in the Kansas City area concerned the murder. Nelson also attached the text of all newspaper" }, { "docid": "59390", "title": "", "text": "the same issues in state court that he raises here. The Arkansas Supreme Court denied relief. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). He then filed a petition for habeas corpus relief in federal district court. After two hearings, the district court denied the petition. Cox v. Norris, No. PB-C-93-625, Transcript of Motions Hearing (E.D.Ark. October 22, 1996); Transcript of Evidentiary Hearing at (E.D.Ark. Nov. 18, 1996); Order (E.D.Ark. Nov. 22, 1996). II. DISCUSSION This matter is before us on an application for a certificate of appealability pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) which became effective on April 24, 1996. Cox first applied to the district court for the certificate. The district court denied Cox’s application under the assumption that it lacked authority to consider such motions. Cox v. Norris, No. PB-C-93-625, Order (E.D.Ark. January 23, 1997). However, district courts, as well as appeals courts, have the authority to issue certificates of appeala-bility under the AEDPA. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.1997). Having reviewed the entire record, we see no reason to go through the unnecessary step of remanding to the district court and we will treat Cox’s notice of appeal as an application for a certificate of appealability addressed to the judges of this Court. See id. at 522. To grant a certificate of appealability, we must find a substantial showing of the denial of a federal constitutional right. See id. A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.1994). With those standards in mind, we find that Cox’s application for a certificate of appealability should be denied. A. Continuance Cox first claims that he was denied his right to due process and his Sixth Amendment right to a fair jury as a result of the trial court’s refusal to grant his request for a continuance because of excessive publicity about the death penalty. The first person to be" }, { "docid": "2744074", "title": "", "text": "one year grace period. See, e.g., Diaz v. Mantello, 47 F.Supp.2d 485 (S.D.N.Y.1999) (collecting cases); see also Hudson v. Jones, 35 F.Supp.2d 986, 988-89 (E.D.Mich.1999); Healy v. DiPaolo, 981 F.Supp. 705, 706-08 (D.Mass.1997). Accordingly, the district court order of July 28, 1997 is vacated and the matter is remanded to the district court for further proceedings consistent with this decision. It is so ordered. . Ordinarily, a COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). While the procedural issues in question are not constitutional, this court has power to consider such preliminary procedural rulings where they are predicates to consideration of a constitutional issue. See Nichols v. Bowersox, 172 F.3d 1068, 1070 n. 2 (8th Cir.1999) (en banc); cf. Thomas v. Greiner, 174 F.3d 260, 260 (2d Cir.1999) (per curiam). Numerous courts, in fact, have simply granted COAs on the timeliness issue without discussing whether the requirement of § 2253(c)(2) has been met. See, e.g., Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir.1998); Hoggro v. Boone, 150 F.3d 1223, 1224 (10th Cir.1998); Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 617 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 977 (10th Cir.), cert. denied, - U.S. -, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). . We note that four days lapsed between the superior court’s May 8th denial of Gaskins’ new trial motion and Gaskins’ motion for leave to appeal that decision on May 13. There is, as yet, no firm trend on the issue whether \"a properly filed application” for collateral review is \"pending” during the period that the state appeal petition is being prepared. Compare Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.1999) (tolling the preparation period) and Hudson v. Jones, 35 F.Supp.2d 986, 988-89 (E.D.Mich.1999) (similar) with Moseley v. French, 961 F.Supp. 889, 892 (M.D.N.C.1997) (not excluding preparation period). We need not definitively resolve whether the time for preparing a petition for appellate review of the denial of a request for collateral relief should be excluded from" }, { "docid": "23607810", "title": "", "text": "Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir.1995), cert. denied, 517 U.S. 1119, 116 S.Ct. 1351, 134 L.Ed.2d 520 (1996). Thus, before we address the merits of Soto’s arguments, we first consider whether we have jurisdiction to hear his appeal. I. Appellate Jurisdiction In 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Among other changes, it amended 28 U.S.C. § 2253 to allow appeals from proceedings arising under 28 U.S.C. § 2254 (providing habeas relief from state court judgments) and § 2255 only if a certificate of appealability is issued. See 28 U.S.C. § 2253(c)(1) (Supp.1998); Lozada v. United States, 107 F.3d 1011, 1013 (2d Cir.1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997), cert. denied, - U.S. -, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998). A certificate of appealability, in turn, may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Lozada, 107 F.3d at 1013. In the case before us, the government strongly argues that the certificate of ap- pealability issued without the requisite substantial showing of the denial of a constitutional right. We will assume that to be the case. Consequently, we must decide whether a certificate of appealability issued without meeting the “substantial showing of the denial of a constitutional right” requirement nonetheless suffices to confer appellate jurisdiction. We hold that it does. Two of our sister circuits that have addressed this issue have concluded that a certificate of appealability that was issued erroneously nevertheless suffices to confer jurisdiction on a court of appeals. See Young v. United States, 124 F.3d 794, 799 (7th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998); see also United States v. Talk, 158 F.3d 1064, 1068 (10th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1079, 143 L.Ed.2d 81 (1999) (relying on Young and declining to question the validity" }, { "docid": "23607811", "title": "", "text": "showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Lozada, 107 F.3d at 1013. In the case before us, the government strongly argues that the certificate of ap- pealability issued without the requisite substantial showing of the denial of a constitutional right. We will assume that to be the case. Consequently, we must decide whether a certificate of appealability issued without meeting the “substantial showing of the denial of a constitutional right” requirement nonetheless suffices to confer appellate jurisdiction. We hold that it does. Two of our sister circuits that have addressed this issue have concluded that a certificate of appealability that was issued erroneously nevertheless suffices to confer jurisdiction on a court of appeals. See Young v. United States, 124 F.3d 794, 799 (7th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998); see also United States v. Talk, 158 F.3d 1064, 1068 (10th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1079, 143 L.Ed.2d 81 (1999) (relying on Young and declining to question the validity of the certificate of appeal-ability sua sponte); cf. Nichols v. Bowersox, 172 F.3d 1068, 1070-71 n. 2 (8th Cir.1999) (en banc) (holding that 28 U.S.C. § 2253(c)(2)’s denial of a constitutional right requirement does not preclude review of preliminary procedural issues antecedent to the merits of an appeal); Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967) (holding that “when a district judge grants [a pre-AEDPA certificate of probable cause], the court of appeals must grant an appeal in forma pauperis ... and proceed to a disposition of the appeal in accord with its ordinary procedure”) (emphasis added). “The certificate is a screening device.... Once a certificate has issued, ... [judicial and prosecutorial] resources have been invested .... [and] there is little point in scrutinizing the certificate of appealability.” Young, 124 F.3d at 799. We note that this Court has also previously intimated the same “gate-keeping” view of the certificate of appealability requirement. See Lozada, 107 F.3d at 1015 (describing issuance of certificate of appealability as a “ ‘gate-keeping’ function”)." }, { "docid": "3986085", "title": "", "text": "asserts the district court should have given him an unlimited certificate of probable cause under the pre-Aet version of § 2253. Ramsey filed his habeas petition in December 1995 before the Act’s April 1996 effective date, and he asserts the Act does not govern habeas petitions filed before then. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2253 requires a state prisoner to obtain authorization from a district or circuit judge before appealing from the denial of a federal habeas petition. Before the Act, § 2253 required a state prisoner to obtain a certificate of probable cause. See 28 U.S.C. § 2253 (1994). The Act amended § 2253 to require a state prisoner to obtain a certificate of appealability. See 28 U.S.C.A. § 2253(c) (West Supp.1998). The same substantive standard governs issuance of the pre-Aet certificate of probable cause and the post-Act certificate of appealability. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir.1998); Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir.1997). Both certificates issue only if the applicant makes a substantial showing of the denial of a constitutional right. See Roberts, 137 F.3d at 1068; Cannon v. Johnson, 134 F.3d 683, 685 (5th Cir.1998); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). The post-Act certificate of ap-pealability requires a judge to specify which issues satisfy this standard, see 28 U.S.C. § 2253(c)(3), and appellate review of the ha-beas denial is limited to the specified issues, see Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997). The pre-Act certificate of probable cause did not require specification and placed the entire case before the court of appeals, see Roberts, 137 F.3d at 1068, but the court of appeals could confine the issues on appeal to those satisfying the substantial showing standard, see Garrison v. Patterson, 391 U.S. 464, 466, 88 S.Ct. 1687, 20 L.Ed.2d 744 (1968) (per curiam) (court of appeals may consider the certificate of probable cause and merits questions together; full briefing and oral argument is not required in every case in" }, { "docid": "2257110", "title": "", "text": "petitioner appeals the denial of a bail application pending the outcome of a habeas proceeding). We reasoned in Gruñe that “[t]he interest served by the certificate of probable cause requirement—relieving the state and the court system of the burdens resulting from the litigation of insubstantial appeals—is equally served whether the order appealed is a final disposition of the merits or a collateral order.” Id. at 44. This reasoning is equally applicable to appeals arising from orders denying post-judgment relief. Accordingly, in at least one prior case we assumed without discussion that a COA was required to appeal a 60(b) motion requesting reconsideration of a denied § 2255 petition. See Mickens v. United States, 148 F.3d 145, 146 (2d Cir.1998). Moreover, all of our sister Circuits to have considered this issue in either the § 2254 or § 2255 context have concluded that a COA is required before the denial of 60(b) motion may be appealed. See, e.g., Morris v. Horn, 187 F.3d 333, 339 (3d Cir.1999); Langford v. Day, 134 F.3d 1381, 1382 (9th Cir.1998); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.2000), cert. denied, 531 U.S. 1199, 121 S.Ct. 1207, 149 L.Ed.2d 120 (2001) (assuming without discussion that a COA is necessary to appeal the denial of a Rule 60(b) motion in a habeas case); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.), cert. denied, 519 U.S. 1036, 117 S.Ct. 604, 136 L.Ed.2d 530 (1996) (same). We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition. Kellogg is therefore required to obtain a COA to go forward with his appeal. We now address the merits of his motion for a COA. In order to obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is designed to permit an appeal to go forward only if the appeal has a threshold quantum of merit. In the context of a denial of" }, { "docid": "12674948", "title": "", "text": "federal petition during the ninety days following the filing of his notice to appeal to the Supreme Court of Arkansas, the federal petition would surely have been dismissed for failure to exhaust state remedies, because there was still time to perfect his state appeal by filing the record with the Clerk of the Arkansas Supreme Court. That being so, we conclude the state post-conviction appeal was “pending” for purposes of § 2244(d)(2) until at least November 17, 1996, the end of that ninety-day period. Thus, Mills timely filed his federal habeas petition on October 9, 1997. The judgment of the district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. The parties have not addressed, and we do not consider what effect, if any, Mills’s failure to pursue his state court appeal has on the merits of his claims for federal habeas relief. See O’Rourke v. Endell, 153 F.3d 560, 566 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1048, 143 L.Ed.2d 54 (1999). That is an issue for the district court on remand. . Though 28 U.S.C. § 2253(c) provides that a certificate may only be granted upon a substantial showing of a deprivation of a constitutional right, that “does not preclude review of preliminary procedural issues, such as ... [a] limitations question.” Nichols, 172 F.3d at 1070 n. 2; accord Gaskins v. Duval, 183 F.3d 8, 9 n. 1 (1st Cir.1999). . We need not consider whether it also includes time spent petitioning the United States Supreme Court for a writ of certiorari from the denial of state postconviction relief. See Rhine v. Boone, 182 F.3d 1153 (10th Cir.1999). . The State also argues this issue was not presented to the district court and may not be considered on appeal, absent plain error. Construing Mills's pro se filings liberally, we think the district court was adequately alerted to the issue. See Mack v. Caspari, 92 F.3d 637, 640 (8th Cir.1996), cert. denied, 520 U.S. 1109, 117 S.Ct. 1117, 137 L.Ed.2d 317 (1997). . We need not consider whether other provisions" } ]

[ { "docid": "8427868", "title": "", "text": "a corporation is deemed “a citizen of any State by which it has been incorporated and of the State where it has its principal place of business” (28 U.S.C.A. § 1332(c)). Defendant does not even question that plaintiff is a Delaware corporation with its principal place of business located in Pennsylvania. Rather, defendant contends that a corporation is also deemed to be a citizen of every State where it is authorized to do business and since plaintiff is authorized to do business in New York there is no diversity. The matter of what constitutes a corporation’s “principal place of business” was left open in the recent amendment to 28 U.S.C.A. § 1332. Guiding criteria to the question, however, are to be found in numerous decisions construing the same phrase in other statutes. Cf. The Bankruptcy Act, 11 U.S.C.A. § 11. Those decisions teach that the question is essentially one of fact to be determined upon the circumstances of each particular case. Chicago Bank of Commerce v. Carter, 8 Cir., 1932, 61 F.2d 986. The test laid down in this Circuit is that the corporation’s principal place of business is that place which actually functions as the nerve center of the enterprise radiating direction and control over the conduct of the corporate business as a whole. Fada of New York, Inc. v. Organization Service Co., Inc., 2 Cir., 1942, 125 F.2d 120; In re Hudson River Nav. Corp., 2 Cir., 1932, 59 F.2d 971, 974; Scot Typewriter Co. v. Underwood Corp., D.C.S.D.N.Y.1959, 170 F. Supp. 862, 863. Clearly, therefore, under the recognized criteria, the mere fact that a foreign corporation has a place of business in a State where it is qualified to do business is not sufficient to- make that location its principal place of business. Cf. In re Thomas McNally Co., D.C.S.D. N.Y.1913, 208 F. 291, 293. Thus, defendant has failed to show any affirmative facts to refute plaintiff’s assertion that it is a Delaware corporation having its principal place of business in Pennsylvania. Jurisdiction, therefore, is well grounded on diversity of citizenship. Nor is there any merit in" } ]

[ { "docid": "21476097", "title": "", "text": "directed and controlled from its principal office located at 535 Smith-field Street, Pittsburgh, Pennsylvania.” The plaintiff has not sought to contravene any of the answers that the defendant filed to the Court’s questions even though he was given ample opportunity to do so, and in fact indicated to the Court that their answers were probably true. Therefore, the Court must accept these answers as true facts. In the case of Scot Typewriter Co. v. Underwood Corp., D.C., 170 F.Supp. 862, the district court there pointed out that where a corporation that engages in far-flung and varied activities which are carried on in different states, “its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the fur therance of the corporate objective.” 170 F.Supp. at page 865. Applying any or all of these tests to the facts of this case, it is clear that the defendant, Crucible Steel Company of America, has its principal place of business in the Commonwealth of Pennsylvania, as most of its. products are manufactured here, the greatest number of employees are employed here, its principal holdings are located within the Commonwealth of Pennsylvania, its officers and principal office are located in Pennsylvania, and the nerve center of this manufacturer of steel products is located in the heart of the steel-making center of the world — Western Pennsylvania. Therefore, there being a lack of diversity of citizenship as required by Section 1332(c) of Title 28 United States Code, the case should be dismissed." }, { "docid": "18851131", "title": "", "text": "New Jersey and a special products division located in California comprise the balance of defendant’s operations. All corporate officers and executives are in Reading, including the superintendent of the Reading and Bridgeport facilities. Moreover, thirty-three hundred of defendant’s five thousand employees work in Pennsylvania. Defendant conducts shareholder meetings and keeps four of five corporate bank accounts in Pennsylvania. Determination of a corporation’s principal place of business for diversity purposes depends on several factors, but where the center of corporate activities, rather than “occasional meetings of policy making Directors”, exists and to a lesser extent where corporate physical plants, tangible assets and employees are located merit greatest weight. Kelly v. United States Steel Corp., 284 F.2d 850, 854 (3d Cir. 1960). Otherwise stated, the principal place of business exists where the corporation “actually functions as the nerve center of the enterprise radiating direction and control over the conduct of the corporate business as a whole”, Wear-Ever Aluminum, Inc. v. Sipos, 184 F.Supp. 364, 365-66 (S.D.N.Y.1960), see also Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176, 1178 (7th Cir. 1970), National Spinning Co. v. City of Washington, North Carolina, 312 F.Supp. 958, 961 (E.D.N.C.1970), Uniroyal, Inc. v. Heller, 65 F.R.D. 83, 86 (S.D.N.Y.1974), or where the “center of gravity of the corporate function” exists. Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 864-65 (S.D.N.Y.1959). In light of the evidence produced by defendant, even assuming plaintiff’s amended complaint would allege that defendant is incorporated in a state other than Pennsylvania, defendant has successfully rebutted plaintiff’s unembellished jurisdictional allegations under any of these tests. Cf. Quaker State Dyeing & Finishing Co. v. ITT Terryphone Corp., supra (where several corporate officers and staffs resided and transacted daily business of corporation in Pennsylvania, where dollar value of tangible property in Pennsylvania was two and one-half times greater than any other state where corporation existed and amount of income derived from that business was almost two and one-half times greater than anywhere else Pennsylvania was the principal place of business; Wymard v. McClosky & Co., supra (where complaint by corporate bankrupt’s receivers contained" }, { "docid": "13117348", "title": "", "text": "It is governed by the totality of corporate activity at a given place, which, to borrow a phrase from another area of law, may be said to represent the ‘center of gravity’ of corporate function. . Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 865 (S.D.N.Y.1959) [emphasis added]. While it is true that this corporation is not “far-flung” and that it boasts but one “constituent part” (namely, the bowling center itself), there is no doubt that its nerve center is the New York office. This conclusion is not undermined by the fact that Benerofe and O’Kane conduct occasional meetings in Connecticut, or by a comparison of the relative amounts of time spent on the corporation’s business. The fact remains that, while O’Kane is advising Spano and Loughlin, Benerofe is overseeing and directing O’Kane and the plaintiff corporation’s finances from New York. However, plaintiff contends that the Court should look to the locus of the corporation’s physical operations rather than its nerve center in deciding this motion: i. e., it should determine which “state contains a substantial predominance of corporate operations, including personnel . . . Inland Rubber Corp. v. Triple A Tire Service, Inc., 220 F.Supp. 490, 496 (S.D.N.Y.1963); see Kelly v. United States Steel Corp., 284 F.2d 850 (3d Cir. 1960) (where the Court held that the center of a corporation’s production or service activities, rather than its policymaking, determines its principal place of business); Leve v. General Motors Corp., 246 F.Supp. 761, 764 (S.D.N.Y.1965). In Egan v. American Airlines, Inc., 324 F.2d 565, 566 (2d Cir. 1963), a case that was decided after Inland, supra, and that distinguished Kelly, supra, on the grounds that “in that case over-all management control was split between New York and Pennsylvania,” the Court of" }, { "docid": "11019540", "title": "", "text": "business. Id. Texaco Inc., through its subsidiaries and affiliates, has operations in, among many other places, New York, Colorado, Texas, Florida, Oklahoma, Washington, Kansas, the United Kingdom, Indonesia, Latin America, West Africa, Japan, and Korea. See Texaco Inc. Annual Report {passim) attached as Exhibit C to Texaco Inc.’s Brief in Opposition to Plaintiffs’ Motion to Remand (Annual Report). Texaco Inc. is unquestionably the type of “far flung” corporation discussed in Olson. Accordingly, this court finds that the “nerve center” test is the proper component of the “total activity” test to apply in this case. The “nerve center” test was first promulgated in Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959). Olson, 818 F.2d at 406. The Scot Typewriter court stated: Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. Scot Typewriter, 170 F.Supp. at 865 (quoted by Olson, 818 F.2d at 407). After a careful review of the Interrogatory Answers, the affidavit and excerpts from the deposition of Robert E. Koch, Assistant Secretary of Texaco Inc., the following portrait of Texaco Inc. emerges. Texaco Inc. is essentially a holding company, a vertically integrated enterprise involved on a global basis in the production, transportation, refining, and marketing of crude oil and its byproducts. Texaco Inc. conducts its worldwide operations through hundreds of subsidiaries and affiliates located in 148 different countries. Texaco Inc., itself, manufactures no products (save the corporation’s Annual Report). Texaco Inc.’s corporate headquarters and executive offices are located in Harrison, New York. Its mailing address is White Plains, New York. Texaco Inc.’s President and Chief Executive Officer, James W. Kin-near, and the Chairman of the corporation’s Board of Directors, Alfred C. DeCrane, Jr., maintain their offices in Harrison, New York, as do the corporation’s secretary and comptroller. Sixteen of Texaco Inc.’s twenty-two elected executive officers are stationed in Harrison," }, { "docid": "6715576", "title": "", "text": "particular State. Even such a corporation, however, would be regarded as a citizen of that one of the States in which was located its principal place of business.” 168 F.Supp. at pages 797, 798. See also Roseberry v. Fredell, D.C. Ky.1959, 174 F.Supp. 937. The test to be applied to such a multi-state corporation was pointed out in Scot Typewriter Co., Inc. v. Underwood Corp., D.C.S.D.N.Y.1959, 170 F. Supp. 862. The court stated: “The issue must be resolved on an over-all basis. It is governed by the totality of corporate activity at a given place, which, to borrow a phrase from another area of law, may be said to represent the ‘center of gravity’ of corporate function. * * * Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective.” 170 F.Supp. at page 865. See In re Hudson River Nav. Co., 2 Cir., 1932, 59 F.2d 971. Without deciding whether the contention of the plaintiff, that “main office” is synonymous with “principal place of business,” is necessarily valid, under the facts of this case the principal place of business of the defendant United is held to be its main office in Philadelphia, Pennsylvania. The term “main office” naturally raises an inference of the “center of gravity,” the nerve center of corporate function. United has presented no evidence to show that the main office is not the principal place of business or that this principal place of business resides in another state. Removal sections traditionally have been strictly construed and all doubts resolved against the removal. See Browne v. Hartford Fire Insurance Co., supra. See also Cameron v. Hodges, 1887, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132; Phoenix Ins. Co. v. Pechner, 1877, 95 U.S. 183, 24 L.Ed. 427. I conclude that: 1. The plaintiff is a citizen of Pennsylvania. 2." }, { "docid": "15628986", "title": "", "text": "however, that the split of authority is largely linguistic. Even the cases which have taken the “operating assets” approach have not ignored the location of the executive offices and of management activity. Gilardi v. Atchison, Topeka and Sante Fe Railway Co., 189 F.Supp. 82 [N.D.Ill.1960]; Huggins v. Winn-Dixie Greenville, Inc., 233 F.Supp. 667 [E.D.S.C.1964]; Kelly v. United States Steel Corporation, 284 F.2d 850 [3rd Cir. 1960]. Conversely, those cases which recognize the “nerve center” test have not done so without considering the location of the company’s operations. In fact, all of the cases which have come to the attention of this Court agree that the determination must be based on the facts of each individual case. The “nerve center” approach would create a fictional principal place of business where a company’s executive offices are located in one state and all of its business is transacted in another. Bullock v. Wiebe Construction Co., 241 F.Supp. 961 [S.D.Iowa 1965]. In the same respect the “operating assets” test would not be adequate where a company’s business is dispersed relatively equally among several states. In such a case the location of the executive offices assumes a greater importance. Anderson v. Southern Bell Telephone and Telegraph Co., 209 F.Supp. 921 [M.D.Ga.1962], Egan v. American Airlines, Inc., 324 F.2d 565 [2nd Cir. 1963], Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 [S.D.N.Y.1959], Textron Electronics, Inc. v. Unholtz-Dickie Corporation, 193 F.Supp. 456 [D.Conn.1961]. Northwestern Bell Telephone Company does a substantial amount of business in all five states in which it has operations; no one state supplies a majority. The “nerve center” of the business is clearly Omaha, Nebraska. Plaintiff argues that the defendant is not engaged in a wide-spread type of business which the “nerve center” test contemplates. We do not believe that the value of the concept is limited to operations involving a prescribed number of states. Where no one state is clearly the center of corporate activity, or accounts for a majority of the company income, the head-quarters logically assumes greater importance in the determination. This is especially true where the activities conducted by" }, { "docid": "15004367", "title": "", "text": "Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959), in which the court emphasized the place where the corporate officers “control and co-ordinate” the corporate activities. Apparently defendant has used these words in its affidavits in an effort to bring the case within that decision. Plaintiff, on the other hand, with similar intent, characterizes defendants’ New York office as its “nerve center,” another phrase used in the Scot opinion. Both attempts have an obvious bootstrap aspect. Whether or not the Scot case is a precedent for this one must depend upon a comparison of the facts of the two situations rather than upon a parroting of the court’s language in the earlier decision. The Scot case held that the “principal place of business” of a large manufacturer of typewriters and business machines was in New York, where its executive offices were located, rather than in Connecticut, where its manufacturing plants were situated. The Chairman, President, three of the five Vice Presidents, Secretary, Treasurer, Controller, Sales Manager and various other corporate officers made their offices in New York. The personnel, industrial relations, public relations, purchasing, rental, general office sales, intexmational, advertising and sales promotion departments were located in the New York office. Customer relations with respect to service, credit and accounting affecting sales wherever made were administered from New York. This is what the court referred to when it characterized the New York office as the “nerve center” of the corporation. 0 After considering all the evidence in the case before me, I am convinced that there is no real parallel between it and the Scot case. We do not have here a large corporate enterprise with complex and fax’-flung activities. We have what seems to be essentially a family business, which does its manufacturing in Maine and its selling, or most of it, in New York. The executive head of the business lives in Maine, but most of the people who do the selling, which is the business of the subsidiary with which we are here concerned, operate in New York. The executive head comes to New York frequently. Most" }, { "docid": "13788223", "title": "", "text": "the time these officers-do not spend in New York is spent in Miami (43); at New York are made all the usual day-to-day corporate decisions,, including those concerned with policy (39); defendant’s federal tax returns are-filed in New York in accordance with Section 6091(b) (2) of the 1954 Internal-Revenue Code, Title 26 U.S.C., which requires the return to be filed in the district wherein is located the corporation’s principal place of business (Deft. Exs. A & B; 27-31); the Board of Directors-meets regularly in New York. (Creighton Aff. 9) The annual stockholders’ meeting is-held in Delaware. (6) The members of' the Board of Directors are located in Tennessee, North Carolina, Texas, Florida,. New York, Illinois and Georgia. The phrase “principal place of' business” in 28 U.S.C. § 1332(c) has-been the subject of varying court decisions. All the courts agree that the location of a corporation’s principal place-of business is a factual question to be-determined on a case-by-ease basis-through review of the corporation’s total activity. See, e. g., Kelly v. United States Steel Corp., 284 F.2d 850 (3 Cir., 1960); Gilardi v. Atchison, T. & S. F. Ry., 189 F.Supp. 82 (N.D.Ill.1960); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862 (S.D.N.Y.1959). What has separated the courts is the legal criterion which is to guide this factual determination. See generally Note, A Corporation’s Principal Place of Business for Federal Diversity Jurisdiction, 38 N.Y.U. L.Rev. 147 (1963). The cases have taken two distinct lines of reasoning in determining the corporation’s principal place of business. In Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959) the court held that while the defendant’s largest manufacturing operations were in Connecticut, New York was its princi pal place of business, for it was in New York where policy determinations, direction and control of corporate affairs were located. “Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without" }, { "docid": "10982361", "title": "", "text": "has sufficiently demonstrated that its “nerve center” is California, where its corporate offices are located. The overwhelming majority of Defendant’s officers and directors are in California, including its chairman, president, chief operating officer, secretary, treasurer and all of its executive vice presidents. See Affidavit of Attorney Donald L. Sapir, dated November 1, 1994 (“Sapir Aff.”), Ex. 10, Interrogatory No. 6. This is an important consideration in determining a corporation’s “nerve center.” See, e.g., Kubin, 801 F.Supp. at 1112 (finding “nerve center” where executive officers worked full time). More importantly, all of Defendant’s major operational decisions are made in California. From its corporate headquarters, Defendant formulates policies and provides direction for all of its television stations. See Affidavit of Corporate Secretary Jay Itzkowitz, dated November 18, 1994 (“Itzkowitz Aff.”), at ¶ 9. These are additional factors supporting a finding that California is truly Defendant’s “nerve center.” See Egan v. American Air lines, Inc., 211 F.Supp. 292, 295 (S.D.N.Y.1962), aff'd, 324 F.2d 565 (2d Cir.1963) (principal place of business is where company’s “general overall management and business policy is prescribed”); Scot Typewriter Co., 170 F.Supp. at 865 (principal place of business was state in which corporate officers directed and controlled various facets of the business). Other facts also point to the conclusion that Defendant’s principal place of business is California. Although Defendant operates nationwide, thirty-three percent (33%) of its employees work in California, which is far more than work in any other state. See Sapir Aff., Ex. 10, Interrogatory No. 2. Additionally, Defendant leases three times as much space in California as it does in New York. See Itzkowitz Aff. at ¶7. Finally, Defendant’s payroll account and accounts payable are maintained at the Bank of America in California. See Sapir Aff., Ex. 10, Interrogatory No. 3. In short, Defendant has carried its initial burden of demonstrating that California is its principal place of business for purposes of diversity jurisdiction. The burden now switches to Plaintiff to produce evidence sufficient to support a finding that Defendant is merely the “alter ego” of its New York parents. C. Alter Ego Analysis As noted, a" }, { "docid": "4269947", "title": "", "text": "Jurisdiction. Plaintiff invokes our jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1332. Defendants contend that plaintiff Uniroyal, a New Jersey corporation, has its principal place of business in New York. 28 U.S.C. § 1332(c). If so, since defendant Benjamin Heller is a citizen of New York, diversity would be absent. Uniroyal maintains that its principal place of business is at Middlebury, Connecticut. Plaintiff is a vertically integrated manufacturing corporation having substantial activities in many states. The location of its principal place of business is a question of fact. A corporation’s principal place of business is usually considered as being at its “nerve center,” that location “from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in furtherance of the corporate objective.” Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 865 (S.D.N.Y.1959). See also Chu v. Plastic Systems Corp., 308 F.Supp. 1189 (S.D.N.Y.1969); Wear-Ever Aluminum, Inc. v. Sipos, 184 F.Supp. 364 (S.D.N.Y.1960). Also relevant is identification of that state which “contains a substantial predominance of corporate operations, including personnel”, although overall direction and control may be located elsewhere. Inland Rubber Corp. v. Triple A Tire Service, Inc., 220 F.Supp. 490 (S.D.N.Y.1963). Uniroyal’s Board of Directors usually meets in New York City, but has on occasion met at Middlebury, Connecticut. The Chairman and Vice Chairman of the' Board and the President and the Financial Vice President maintain offices both in New York City and Connecticut. Five other Vice Presidents have their offices in Connecticut; another is located in South Carolina. The Corporate Secretary has his office in Connecticut; one Assistant Secretary is in Connecticut, the other is in New York. The Operating Policy Committee, a group of key executives, meets monthly in Connecticut. Seven of Uniroyal’s eight domestic operating divisions have their headquarters in Connecticut; the .eighth is in South Carolina. Uniroyal has 1,387 managerial and supervisory employees in Connecticut but only 65 of such employees are employed in New York. Uniroyal has 2,557 sala”ied employees [a larger category than that last mentioned]," }, { "docid": "11121994", "title": "", "text": "principal place of business” (emphasis added). The determination of corporate citizenship (the principal place of business) is a factual question requiring a review of the corporation’s total activities, Briggs v. American Flyers Airline Corp., 262 F.Supp. 16 (D.C.Okl.1966); Herschel v. Eastern Airlines, Inc., 216 F.Supp. 347 (D.C.N.Y.1963); Anderson v. Southern Bell Tel. and Tel. Co., 209 F.Supp. 921 (M.D.Ga.1962); to be decided on a case by case basis, e.g., Mahoney v. Northwestern Bell Tel. Co., 258 F.Supp. 500 (D.C.Neb.1966), aff’d 377 F.2d 549 (8th Cir. 1967); see also Herschel v. Eastern Airlines, Inc., supra; Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959). See generally, 1 J. Moore, Federal Practice, 2d ed. jf 0.77 [3.-l]-0.77 [3.-4] pp. 717.60-717.82. The plaintiff asserts merely that Southern Bell’s principal place of business is New York, and not Georgia, because all policies are made in New York; New York is the corporate nerve center and is the center of its business activity. Such inexactitudes are not persuasive in light of the evidence offered by the defendant of its principal place of business. The defendant is a New York corporation, all of its common stock being owned by American Telephone and Telegraph Company (hereinafter referred to as “American”) also, a New York corporation. Southern Bell is engaged in furnishing communications services in a four state area, namely, Florida, Georgia, North Carolina and South Carolina. Its office is separate and distinct from that of American’s. There are no directors of the defendant who are also directors of American and the defendant’s directors meet at different times and places than do American’s directors. Southern Bell’s general office is located in Atlanta, Georgia and most of the company’s executive officers and their staffs are located in the Atlanta office. These officers include a president; vice presidents in charge of operations, comptroller activities, revenue requirements, marketing, personnel, public rela tions, legal matters; a corporate secretary; and a corporate treasurer. The vice presidents in charge of operations in the four states have offices within those states. Furthermore, all internal employee matters appear to be directed and operated from Atlanta" }, { "docid": "21476096", "title": "", "text": "in states other than Pennsylvania, and operates sales offices and warehouses in twenty-six states, its principal holdings, including three steel plants and the larger of its two coal mines, are within the Commonwealth of Pennsylvania. “(7) The supervisory officers of the defendant, such as the president, vice president, treasurer and secretary, and the majority of the board of directors are located in Pittsburgh, Pennsylvania. “(8) The majority of the other officers of the corporation such as the vice president of sales, vice president of finance, vice president of technology, and vice president of employee relations, and also the director of purchases are located in Pittsburgh, Pennsylvania. “(9) The largest number of the defendant’s employees are located at the Midland Plant in Midland, Pennsylvania. “(10) Most of the tangible property of the defendant is located in Midland, Pennsylvania. “(11) Defendant’s records do not indicate the state where the various materials used by it are originally obtained; however, the majority of all purchases is made by defendant’s purchasing department in Pittsburgh, Pennsylvania. “(12) The defendant’s business is directed and controlled from its principal office located at 535 Smith-field Street, Pittsburgh, Pennsylvania.” The plaintiff has not sought to contravene any of the answers that the defendant filed to the Court’s questions even though he was given ample opportunity to do so, and in fact indicated to the Court that their answers were probably true. Therefore, the Court must accept these answers as true facts. In the case of Scot Typewriter Co. v. Underwood Corp., D.C., 170 F.Supp. 862, the district court there pointed out that where a corporation that engages in far-flung and varied activities which are carried on in different states, “its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the fur therance of the corporate objective.” 170 F.Supp. at page 865. Applying any or all of these tests to the facts of this case, it is clear that the defendant, Crucible Steel Company of America, has" }, { "docid": "5420954", "title": "", "text": "tr. at 9. When meetings are held in the United States with regard to the business of Dela-lande, they take place at the Denney offices in New York City, which also serve as the offices of Coparel, Inc. Tr. at 14. Were these the only factors to be considered, it would be clear that the standard to be applied in determining the principal place of business of Delalande would be the “nerve center” test, first articulated in Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 865 (S.D.N.Y.1959), and reaffirmed in R. G. Barry Corp., supra at 655: “[T]he principal place of business of a far-flung corporation enterprise is ‘the nerve center’ from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate obiec-tive.” In contrast to the “corporate operations” test enunciated in Inland Rubber Corp. v. Triple A Tire Service, Inc., 220 F.Supp. 490 (S.D.N.Y.1963), which focuses upon the locus of the corporations’s physical operations, the “nerve center” test reviews the totality of the corporate activity at any given place, focusing upon the “center of gravity” of corporate functions. Scot Typewriter Co., supra at 865. Considered more appropriate when determining the principal place of business of diversified corporations, the “nerve center” test has been frequently applied to holding companies or parent corporations with subsidiaries scattered throughout several states. See, e.g., Moore’s Federal Practice HH 0.77[3.-2], 0.77[3.-4], Accordingly, if the “nerve center” test were to be applied to the aforementioned factors, as Delalande would urge this Court to do, the principal place of business of Delalande would be Paris, France. The difficulty presented, however, is that while the direction and control of Delalande may radiate from its parent company in Paris, the management and implementation of these decisions and policies are effectuated principally in New York. Unlike the factual circumstances presented in Scot Typewriter Co., it cannot be said that the policy determinations as well as the direction and control of the corporate affairs of Delalande are conducted by the executives" }, { "docid": "5483727", "title": "", "text": "so that a corporation shall be regarded not only as a citizen of the State of its incorporation but also as a citizen of the State in which it maintains its principal place of business. This will eliminate those corporations doing a local business with a foreign charter but will not eliminate those corporations which do business over a large number of States, such as the railroads, insurance companies, and other corporations whose businesses are not localized in one particular State. Even such a corpo ration, however, would be regarded as a citizen of that one of the States in which was located its principal place of business.” The defendant relies principally on the case of Scot Typewriter Co. v. Underwood Corporation, D.C., 170 F.Supp. 862, at page 864, in which Judge Weinfeld said, “Where a corporation is engaged in multistate activities, with offices, facilities or plants in various states, the issue of the location of its principal place of business cannot be resolved by fragmentation of its activities at specific places. It is not answered by a separation of corporate activity into component parts. The issue must be resolved on an over-all basis. It is governed by the totality of corporate activity at a given place, which, to borrow a phrase from another area of law, may be said to represent the ‘center of gravity’ of corporate function.” He said further, at page 865, “Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an ‘office from which its business was directed and controlled' — the place where ‘all of its business was under the supreme direction and control of its officers’. “In the instant case, policy determinations are made in New York; direction and control of" }, { "docid": "23063200", "title": "", "text": "as the principal place of business for the reason that state law and corporate charters generally allow these meetings to be held in places totally unrelated to the business of the corporation. Id. at 852. The court also declined to adopt the “nerve center” test in this case because the organization of U.S. Steel provided for “a good many collections of nerve cells serving the common function of making the corporate enterprise go.” Id. at 853. The court then turned to the method of operation of U.S. Steel. It noted that activities which took place in New York included the filing of tax returns, meetings of the board of directors (although the board could and sometimes did meet elsewhere), the executive committee, the finance committee, the corporation’s major banking and the management of its government securities and pension plan. Additionally, the chairman of the board, the president, the secretary, the treasurer and general counsel of U.S. Steel were in New York. Id. at 853-54. The court concluded that “[i]f the test of ‘principal place of business’ is where ... final decisions are made on corporate policy, then New York was U.S. Steel’s principal place of business.” Id. at 854. The board of directors, however, had delegated to its operation policy committee the authority to conduct the corporation’s business. That committee was in Pennsylvania, and its duties included appointment of division presidents and corporation officers. Additionally, all of the executive vice presidents and most of the other vice presidents and their staffs were in Pennsylvania. The court also noted that Pennsylvania had far more U.S. Steel employees and tangible property than had New York or any other state. Balancing the facts relating to the business operations in Pennsylvania and New York, the Third Circuit held: “All this points us to the conclusion that business by way of activities is centered in Pennsylvania and we think it is the activities rather than the occasional meeting of policy-making Directors which indicate the principal place of business.” Id. Lurie Co. v. Loew’s San Francisco Hotel Corp., 315 F.Supp. 405 (N.D.Cal.1970), is a classic case," }, { "docid": "15004366", "title": "", "text": "York.” There is a place at the bottom of the form for acceptance at Guilford, Maine, by Industries, i. e., by Fabxlcs’ principal. There is nothing on the form to indicate that Fabrics itself is located anywhere other than New York. The invoices which are sent to Fabrics’ customers are similarly headed “Guilford Woolen Fabrics, Inc., Empire State Building, 350 Fifth Avenue, New York 1, New York.” Most of Fabrics’ customers are located in the New York area and most of its sales are solicited here. Fabrics does have a small sales office in California with only a few employees to service the West Coast. Policy decisions, including the “control” and “co-ordination” of sales activities are said by defendant to be made by its President-Treasurer and its Clerk. Since they spend most of their time in Maine, most of the decisions are made there. The question of fact here presented is a rather close one, and like most questions of fact, it finds no exact parallel in the decided cases. Both sides point to Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959), in which the court emphasized the place where the corporate officers “control and co-ordinate” the corporate activities. Apparently defendant has used these words in its affidavits in an effort to bring the case within that decision. Plaintiff, on the other hand, with similar intent, characterizes defendants’ New York office as its “nerve center,” another phrase used in the Scot opinion. Both attempts have an obvious bootstrap aspect. Whether or not the Scot case is a precedent for this one must depend upon a comparison of the facts of the two situations rather than upon a parroting of the court’s language in the earlier decision. The Scot case held that the “principal place of business” of a large manufacturer of typewriters and business machines was in New York, where its executive offices were located, rather than in Connecticut, where its manufacturing plants were situated. The Chairman, President, three of the five Vice Presidents, Secretary, Treasurer, Controller, Sales Manager and various other corporate officers made their offices in" }, { "docid": "13788224", "title": "", "text": "850 (3 Cir., 1960); Gilardi v. Atchison, T. & S. F. Ry., 189 F.Supp. 82 (N.D.Ill.1960); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862 (S.D.N.Y.1959). What has separated the courts is the legal criterion which is to guide this factual determination. See generally Note, A Corporation’s Principal Place of Business for Federal Diversity Jurisdiction, 38 N.Y.U. L.Rev. 147 (1963). The cases have taken two distinct lines of reasoning in determining the corporation’s principal place of business. In Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959) the court held that while the defendant’s largest manufacturing operations were in Connecticut, New York was its princi pal place of business, for it was in New York where policy determinations, direction and control of corporate affairs were located. “Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective.” 170 F.Supp. at 865. The third circuit in Kelly v. United States Steel Corp., 284 F.2d 850 (3 Cir., 1960) refused to follow the “nerve center” test in determining the principal place of business of the defendant, one of the largest American corporations. The court rejected New York, where financial and ultimate corporate decisions are made, and chose Pennsylvania, the place where major operations in the production of steel are carried on, where more employees and tangible property are located and where day-to-day operating decisions are made. In adding subsection (c) to Section 1332 in 1958, Congress desired that the courts be guided by the judicial constructions of similar provisions, such as Section 2, sub. a(l) of the Bankruptcy Act, 11 U.S.C. § 11, sub. a(l). (S.Rep.No. 1830, 85th Cong. 2d Sess. (1958)). Rather than, with solonic wisdom, establishing the criterion, this simply perpetuated the problem. Compare Burdick v. Dillon, 144 F. 737 (1st Cir., 1906), appeal dismissed 205 U.S. 550, 27 S.Ct. 792, 51" }, { "docid": "6650127", "title": "", "text": "the situs of the board of directors or other meetings setting broad corporate policy.” Id. at 800.117. Maremont states and the court agrees that the “nerve center” test is necessary and most helpful when the focus of the activities of a corporation fails to indicate a predominate state or one “principal place of business.” Nonetheless, as the court has repeatedly stated, the Seventh Circuit has adopted the “nerve center” test as its universal method of determining principal place of business. There is no requirement that the “nerve center” be located where the corporation has operations. In fact, in Sabo v. Standard Oil Co., 295 F.2d 893 (7th Cir.1961), the Seventh Circuit cited as examples of how to ascertain a corporation’s principal place of business two cases where other courts had held that the principal place of business was where the executive offices were located rather than the situs of the corporation’s operations. Id. at 894 (citing Burdick v. Dillon, 144 F. 737 (1st Cir.1906) (Massachusetts was principal place of business for a New Jersey corporation whose operations were carried on in New York and Vermont but whose executive offices were in Massachusetts) and Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (D.N.Y.1959) (holding corporation’s principal place of business was New York where its executive offices were located rather than Connecticut, the situs of its largest plant as well as of research and operational activities)). In Sabo, the Seventh Circuit held that the defendant’s principal place of business was in Illinois, where defendant’s general offices were located, officers and department heads resided and carried out the management of the company, corporate income tax returns were filed, company records and audits were kept, collection matters were handled, the principal bank account was located and the board of directors’ meetings were held. Sabo, 295 F.2d at 893-894. Which of these factors were essential to the court’s holding is unclear. But neither Sabo nor any other ease this court has found indicates that a corporation must have operations at the location of its principal place of business. Therefore, the court cannot draft a" }, { "docid": "10982360", "title": "", "text": "its parents. Hence, Defendant will have the initial burden of making a prima facie showing that its principal place of business is California. If Defendant demonstrates this, Plaintiff will bear the burden of producing facts sufficient to support its assertion that Defendant is merely an “alter ego” of its New York parents. Only if Plaintiff meets this burden of production will the ultimate burden of persuasion return to Defendant. B. The Nerve Center Test The appropriate test for determining the principal place of business of a corporation with operations spread over numerous states is the “nerve center test.” See R.G. Barry Corp., 612 F.2d at 655; Kubin v. Miller, 801 F.Supp. 1101, 1112 (S.D.N.Y.1992); Petroleum & Energy Intelligence Weekly, Inc. v. Liscom, 762 F.Supp. 530, 534-35 (S.D.N.Y.1989). This test seeks to locate “the nerve center from which [the corporation] radiates out to its constituent parts and from which [the corporation’s] officers direct, control and coordinate all activities.” Kubin, 801 F.Supp. at 1112 (quoting Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 865 (S.D.N.Y.1959)). Defendant has sufficiently demonstrated that its “nerve center” is California, where its corporate offices are located. The overwhelming majority of Defendant’s officers and directors are in California, including its chairman, president, chief operating officer, secretary, treasurer and all of its executive vice presidents. See Affidavit of Attorney Donald L. Sapir, dated November 1, 1994 (“Sapir Aff.”), Ex. 10, Interrogatory No. 6. This is an important consideration in determining a corporation’s “nerve center.” See, e.g., Kubin, 801 F.Supp. at 1112 (finding “nerve center” where executive officers worked full time). More importantly, all of Defendant’s major operational decisions are made in California. From its corporate headquarters, Defendant formulates policies and provides direction for all of its television stations. See Affidavit of Corporate Secretary Jay Itzkowitz, dated November 18, 1994 (“Itzkowitz Aff.”), at ¶ 9. These are additional factors supporting a finding that California is truly Defendant’s “nerve center.” See Egan v. American Air lines, Inc., 211 F.Supp. 292, 295 (S.D.N.Y.1962), aff'd, 324 F.2d 565 (2d Cir.1963) (principal place of business is where company’s “general overall management and business" }, { "docid": "13117347", "title": "", "text": "bank accounts, in Port Chester and Danbury, are directed to him at Port Chester. The bookkeeping for the corporation is done by a bookkeeper employed by Benerofe Construction who works in the New York office. (The plaintiff corporation pays Benerofe Construction for the use of its bookkeeper.) The address on the contract at issue here is that of the New York office and the letters concerning that contract that have been submitted to the Court, with only one exception, bear either the New York address or the address of plaintiff’s New York counsel. In addition, three of the four directors and three of the four officers of the plaintiff corporation are residents of New York. Shortly after the passage of the amendment to 28 U.S.C. § 1332(c) that provided that a corporation is to be deemed a citizen of the state in which it has its principal place of business, Judge Weinfeld of this District declared that [t]he issue [regarding the location of its principal place of business] must be resolved on an over-all basis. It is governed by the totality of corporate activity at a given place, which, to borrow a phrase from another area of law, may be said to represent the ‘center of gravity’ of corporate function. . Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862, 865 (S.D.N.Y.1959) [emphasis added]. While it is true that this corporation is not “far-flung” and that it boasts but one “constituent part” (namely, the bowling center itself), there is no doubt that its nerve center is the New York office. This conclusion is not undermined by the fact that Benerofe and O’Kane conduct occasional meetings in Connecticut, or by a comparison of the relative amounts of time spent on the corporation’s business. The" } ]

[ { "docid": "22747642", "title": "", "text": "circumstances that would offend “ ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U. S., at 316, quoting Milliken v. Meyer, 311 U. S., at 463. We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief. It must also weigh in its determination “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.” World-Wide Volkswagen, 444 U. S., at 292 (citations omitted). A consideration of these factors in the present case clearly reveals the unreasonableness of the assertion of jurisdiction over Asahi, even apart from the question of the placement of goods in the stream of commerce. Certainly the burden on the defendant in this case is severe. Asahi has been commanded by the Supreme Court of California not only to traverse the distance between Asahi’s headquarters in Japan and the Superior Court of California in and for the County of Solano, but also to submit its.dispute with Cheng Shin to a foreign nation’s judicial system. The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant. In the present case, however, the interests of the plaintiff and the forum in California’s assertion of jurisdiction over Asahi are slight. All that remains is a claim for indemnification asserted by Cheng Shin, a Tawainese corporation, against Asahi. The transaction on which the indemnification claim is based took place in Taiwan; Asahi’s components were shipped from Japan to Taiwan. Cheng Shin has not demonstrated that it is" } ]

[ { "docid": "21530564", "title": "", "text": "protect the liberty of the nonresident defendant — not the convenience of plaintiffs or third parties.” Id. (citing WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980)). They assure “that a defendant be haled into a court in a forum ... based on his own affiliation with the [forum], not based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the [forum].” Id. at 1123 (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174). Where the required minimum contacts are found, the Court then assesses the reasonableness of exercising personal jurisdiction over the defendant, Metro. Life Ins. Co., 84 F.3d at 568; see also Burger King, 471 U.S. at 476, 105 S.Ct. 2174; where they are not, the c|ue process inquiry is at end, see, e.g., Walden, 134 S.Ct. at 1126 (holding personal jurisdiction lacking based on lack of minimum contacts without undertaking reasonableness inquiry). As to the second inquiry, a court determines reasonableness by applying the five-factor test of Asahi Metal Indus. Co., Ltd. v. Superior Court of California, Solano Cty., 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Id. The factors are “(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.” Id. (citing Asahi, 480 U.S. at 113-14, 107 S.Ct. 1026). A court that reaches this inquiry evaluates reasonableness in tandem with the defendant’s minimum contacts, such that a lesser showing as to one inquiry may be tolerated if the other strongly favors an exercise of jurisdiction, and vice-versa. Id. (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174) (although exercise of personal jurisdiction is favored when plaintiff has made a threshold showing of minimum contacts, jurisdiction may be defeated if defendant makes “a compelling case" }, { "docid": "20638308", "title": "", "text": "an alleged wrongdoing intentionally directed at a California resident.” Id. Accordingly, we do not exclude Camus’s Mississippi contacts from the jurisdictional analysis, because they were in the context of his Air 2 employment. He directed his activities at Mississippi, which satisfies step one of the Nuovo Pignone analysis. Step two asks whether the cause of action “arises out of or results from [Camus’s] forum-related contacts.” Nuovo Pignone, 310 F.3d at 378. Camus transported the work platform to Mississippi and inspected it there. Viewing all facts favorably toward jurisdiction, as we must, this is sufficient to find that the claims of failure to warn, negligence, and negligence per se arise out of Camus’s Mississippi contacts. The district court found that “Ca-mos’ April 2000 inspection of the work platform is too far removed in time to have played any role in Seiferth’s death nearly a year later.” Though this statement may be true, it does not bear on the jurisdictional question, but rather goes to the merits of Seiferth’s claims. A defendant with the required minimum contacts “cannot avoid personal jurisdiction by speculating as to whether another party was actually responsible for the accident.” Id. at 380. Thus, because Seiferth’s claims of failure to warn, negligence, and negligence per se arise out of Camus’s forum contacts, the second step of the Nuovo Pignone analysis is satisfied. The third and final step asks “whether the exercise of personal jurisdiction is fair and reasonable.” Id. at 378. The burden of proof shifts to the defendant to show that the exercise of personal jurisdiction is unfair or unreasonable based on five factors: “(1) the burden on the nonresident defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental social policies.” Id. at 382 (citing Fetch v. Transportes Lar-Mex SA de CV, 92 F.3d 320, 324 (5th Cir.1996)). Because the district court determined that Camus did not have sufficient contacts with Mississippi to permit the exercise" }, { "docid": "22596370", "title": "", "text": "On November 7, 1997, Mink filed his original complaint in the United States District Court for the Southern District of Texas against AAAA Development and David Middlebrook, alleging that they conspired to copy Mink’s computer program in violation of federal copyright and patent pending rights. AAAA Development and Middlebrook moved to dismiss for lack of personal jurisdiction. The district court granted their motions. Mink filed a motion for reconsideration of the order dismissing AAAA and Middlebrook, adding allegations that the defendants had been actively targeting customers in Texas with cold calls and asserting for the first time that AAAA’s Internet website, accessible from Texas, could fulfill the minimum contacts requirement for the exercise of personal jurisdiction. The district court denied the motion for reconsideration. We affirm. II. DISCUSSION The sole issue on appeal is whether the district court erred in dismissing defendants AAAA and Middlebrook for a lack of personal jurisdiction. The district court's determination of the exercise of personal jurisdiction over a defendant is a question of law subject to de novo review. See Felch v. Transportes Lar-Mex S.A. De CV 92 F.3d 320, 324 (5th Cir.1996). When a nonresident defendant challenges personal jurisdiction, the plaintiff bears the burden of establishing the district court's jurisdiction over the defendant. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). We conclude the district court did not err in dismissing the defendants for lack of personal jurisdiction. A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over that defendant; and (2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution. See Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999). Because Texas's long-arm statute has been interpreted to extend to the limits of due process, we only need to determine whether subjecting AAAA and Middlebrook to suit in Texas would be consistent with the Due Process Clause of the Fourteenth Amendment. See Electrosource, Inc. v. Horizon Battery Technolo gies, Ltd., 176 F.3d 867, 871 (5th" }, { "docid": "4153456", "title": "", "text": "the interest of the forum state in adjudicating the controversy; (3) the interest of the plaintiff in obtaining convenient and effective relief; (4) the interest of the interstate judicial system in obtaining the most efficient resolution of the dispute; and (5) the shared interest of the states in furthering fundamental social policies. See Asahi 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); see also Burger King, 471 U.S. at 477, 105 S.Ct. 2174; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Where personal jurisdiction is sought over an alien defendant, consideration of “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the [state] court,” substitutes for the final two factors, and “the Federal interest in Government’s foreign relations polices” also may be a factor. Asahi 480 U.S. at 115, 107 S.Ct. 1026. 3. Adaptation of Due Process to Mass Tort Context The New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure require that both state and federal jurisdictional provisions be construed to promote fairness and litigation efficiencies. See, e.g., CPLR 104 (“The civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil proceeding.”); CPLR 301, 302 (jurisdictional bases); Fed. R.Civ.P. 1 (the rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action”); Fed.R.Civ.P. 4(k)(l)(A) (providing for “jurisdiction over the person of a defendant ... who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located”). These goals are impeded in multistate mass tort litigation by continued reliance on a defendant-forum territorial nexus as a precondition for the exercise of personal jurisdiction. See generally In re DES Cases, 789 F.Supp. 552, 574-577 (E.D.N.Y.1992); see also American Law Institute, Complex Litigation: Statutory Recommendations and Analysis § 3.08 cmt. b, at 151 (1994) (“ALI, Complex Litigation”) (the “minimum contacts” requirement “act[s] as an impediment to achieving the most efficient" }, { "docid": "23083393", "title": "", "text": "forum state, the burden of proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999). The defendant must make a “compelling case.” Burger King, 471 U.S. at 477, 105 S.Ct. 2174. In determining whether the exercise of jurisdiction is fair and reasonable, we look to (1) the burden on the nonresident defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental social policies. Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir.1996). Fagioli argues only that subjecting it to suit in Louisiana would be overly burdensome and that Louisiana lacks interest in hearing the suit. In Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Court noted that “[gjreat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.” The Court was concerned with the “unique burdens placed upon one who must defend oneself in a foreign legal system.” Id. at 114, 107 S.Ct. 1026. Fagioli does not present any reason why subjecting it to suit in Louisiana would be overly burdensome. In fact, Fagioli presents itself as a specialist in “worldwide transport and logistics” that maintains offices in the United States. As for Louisiana’s interest in adjudicating a dispute between two Italian companies, the district court correctly concluded that “Louisiana has an interest in redressing the injury based on the failure of the equipment in unloading the reactor in New Orleans.” Although in Asahi, the Court questioned California’s interest in maintaining an indemnification suit between two foreign parties, 480 U.S. at 115, 107 S.Ct. 1026, here Nuovo Pignone alleges that damage to the reactor was caused by Fagioli’s “negligence, fault, breach of duty, or breach of contract or warranty.” Unlike the situation in Asahi, where the underlying tortious conduct giving" }, { "docid": "19456410", "title": "", "text": "infringing activity occurred outside the United States. Reyna, Circuit Judge, concurring. I join the majority and agree that Rule 4(k)(2) supports finding that the district court can exercise specific personal jurisdiction over Dynamic Air Ltda. (\"DAL\") in this case. Fed. R. Civ. P. 4(k)(2). I also agree that DAL has waived the issue of whether U.S. patent laws extend to U.S.-flagged ships on the high seas, but find that the broader issue of territoriality still weighs heavily in this case. I write to provide additional reasoning why the exercise of personal jurisdiction here does not offend traditional notions of fair play and substantial justice. See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). \"The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders .\" Asahi Metal Ind. Co. , v. Superior Court of Cal., Solano Cty. , 480 U.S. 102, 114, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (emphasis added). This emphasis on \"national borders\" is central to Rule 4(k)(2)(B) considerations. For example, prong three of the Rule 4(k)(2)(B) inquiry (i.e., the requirement that assertion of personal jurisdiction must comport with due process) requires the court to consider five factors: (1) the burden on the defendant; (2) the forum's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the states in furthering fundamental substantive social policies. Burger King , 471 U.S. at 477, 105 S.Ct. 2174. Each of these factors raises the issue of the relationship between territoriality and U.S. patent law. The majority opinion also emphasizes the interest of the United States in enforcing its patent laws within its territories, an assertion that, in particular, implicates the territoriality issue. See Maj. Op. at 1002. U.S. PATENT LAW ON THE HIGH SEAS The crux of DAL's position that U.S. patent laws" }, { "docid": "19823358", "title": "", "text": "an equipment lease agreement with Strick Lease on behalf of Lar-Mex and listed his title as \"G & E Laredo.\" . One such agreement, detailed in a document entered into evidence during Garcia's deposition, defines how Lar-Mex is to use, insure and maintain that company's trailers. Additionally, this agreement contemplates that disputes are to be settled in a United States court employing U.S. law. Moreover, Garcia signed this agreement on behalf of Lar-Mex, listing his title as “Gerente General (Laredo)”. . Felch further characterizes Garcia's testimony as asserting that Lar-Mex “hoped\" that it would be hired by the customer financing this shipment to take the shipment on from Nuevo Laredo, Mexico, to a designated location in Laredo, Texas. Lar-Mex responds that there is nothing in the record to indicate that this shipment was destined for Texas. In fact, Lar-Mex contends that the record contains no indication that any of the goods transported by Lar-Mex are destined for Texas. Furthermore, Lar-Mex denies any indication in the record that it “hoped” to be hired to take the merchandise involved in the accident into Laredo, Texas. In his deposition, Garcia simply stated, \"And if they were to hire me, to contract me, then I might have delivered [the shipment involved in the accident] in Texas.” That is the only evidence on this matter. . The facfors that should be considered in conducting this \"fairness\" inquiry are: \"[T]he burden upon the nonresident defendant; (2) the interests of the forum state; (3) the plaintiff's interest in securing relief; (4) `the interstate judicial system's interest in obtaining the most efficient resolution of controversies'; and (5) `the shared interest of the several States in furthering fundamental substantive social policies.'\" Wilson, at 647 n. 3 (citations omitted). . During the hearing held on July 29, 1994, the nature of which we will return to, infra, the district court questioned counsel for both parties regarding personal jurisdiction. The following exchanges took place concerning specific jurisdiction: \"THE COURT: Okay. What about specific jurisdiction? Does that apply when any contacts would arise on an occasional delivery, or is it too remote?" }, { "docid": "4246758", "title": "", "text": "omitted). Hence, although the Insurers have sufficient minimum contacts with Kansas, we must decide whether the assertion of personal jurisdiction over the Insurers comports with “traditional notions of fair play and substantial justice.” Asaki, 480 U.S. at 113, 107 S.Ct. 1026 (quotation omitted). This determination requires a case-specific inquiry into the reasonableness of the exercise of personal jurisdiction over a defendant who has minimum contacts with the forum state. See id. We assess reasonableness by weighing five factors: (1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1249 (10th Cir.2000) (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174). In assessing the reasonableness of jurisdiction, we also take into account the strength of a defendant’s minimum contacts. As we have previously stated, the reasonableness prong of the due process inquiry “ ‘evokes a sliding scale: the weaker the plaintiffs showing on [minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction.’ ” OMI Holdings, Inc., 149 F.3d at 1092 (alteration in original) (quoting Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 210 (1st Cir.1994)). Here, the Insurers’ minimum contacts-—based on a worldwide territory-of-eoverage clause and a right to defend the insured—-are “qualitatively low on the due process scale.” Id. at 1095. Because their contacts are weak, the Insurers need not make a strong showing of unreasonableness. With this in mind, we consider each reasonableness factor below and conclude that the exercise of personal jurisdiction over the Insurers in Kansas would be unreasonable. 1. Burden on Defendants of Litigating in the Forum “The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” Asahi, 480 U.S." }, { "docid": "7054394", "title": "", "text": "... (1980) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 ... (1945)). [The defendant] bears the burden at this-stage to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir.2008). We consider the following five factors, ... in deciding whether the exercise of jurisdiction would be fair: (1) the burden on the defendant, (2) the forum state’s interests in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effectual relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states or foreign nations in furthering fundamental social policies. Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying these factors in a case involving a Canadian corporation). “[T]he reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiffs showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d at 1292 (internal quotation marks and brackets omitted). Marcus Food Co. v. DiPanfilo, 2011 WL 5084997, *4-*5. LAW REGARDING VENUE Venue is defined as the appropriate district court in which to file an action. See NLRB v. Line, 50 F.3d 311, 314 (5th Cir.1995). The purpose of venue is to assure that lawsuits are filed in appropriately convenient courts for the matters raised and for the parties involved in the action. See Leroy v. Great W. United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). Venue should not be confused with subject-matter jurisdiction, see Wachovia Bank v. Schmidt, 546 U.S. 303, 315-16, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006), or with personal jurisdiction, see Leroy v. Great W. United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) (“The question of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is typically decided in advance" }, { "docid": "23083392", "title": "", "text": "home forum. Like defendants in products liability cases that utilize the stream-of-commerce principle, Fagioli did not contract with a citizen of the home forum, but rather with third party intermediaries who brought the crane to Louisiana. Fagioli should have considered the possible devastation that its choice of a defective onboard crane might cause in Louisiana. In this sense, the same public policy concerns that justify use of the stream-of-commerce principle in the products liability context are present here. B. We next turn briefly to whether Nuovo Pignone’s claims arise out of Fagio- li’s contacts with Louisiana. Burger King, 471 U.S. at 472, 105 S.Ct. 2174. We have established that Fagioli directed its activities toward Louisiana by agreeing to transport the reactor to the Port of New Orleans. Nuovo Pignone alleges that the reactor was dropped as a direct result of Fagioli’s failure to provide a vessel with “safe autonomous hoisting operations.” Therefore, Nuovo Pignone’s claims necessarily arise out of Fagioli’s contact with Louisiana. C. Once a plaintiff establishes minimum contacts between the defendant and the forum state, the burden of proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999). The defendant must make a “compelling case.” Burger King, 471 U.S. at 477, 105 S.Ct. 2174. In determining whether the exercise of jurisdiction is fair and reasonable, we look to (1) the burden on the nonresident defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental social policies. Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir.1996). Fagioli argues only that subjecting it to suit in Louisiana would be overly burdensome and that Louisiana lacks interest in hearing the suit. In Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Court noted that “[gjreat care and reserve should" }, { "docid": "19257269", "title": "", "text": "arose from Superior’s alleged trademark infringement cognizable at Roberts-Gordon’s principal place of business, and other Internet users including prospective customers, in New York. See Bensusan, supra, at 29. Accordingly, Superior’s contact with New York through its web site constitutes sufficient minimum contacts with New York to find that Superior “purposefully availed” itself of New York law. Calder, supra, at 788, 104 S.Ct. 1482; Digital Equipment, supra, at 469-70. Due process considerations also require that the assertion of jurisdiction over a nonresident defendant comport with “traditional notions of fair play and substantial justice” such that jurisdiction over the defendant is “reasonable” given the circumstances of the case. Kernan, supra, at 244 (internal citations omitted). “Rea sonableness” is determined based on five factors including (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial’s system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering social substantive policies. Kernan, supra, at 244 (citing Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996)). As to the first factor, the court must consider whether exercising personal jurisdiction would place any \"unique burdens\" on Superior who would be forced to defend itself in a foreign legal system. Kernan, supra, at 244 (citing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 114, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). The court finds that requiring Superior to defend this action in New York would impose little burden given the proximity of its location in Ontario, Canada to Buffalo, New York. That Superior maintains a consultant who lives in Orchard Park, New York and admittedly maintains at least two \"authorized representatives\" to facilitate business in New York further indicates that geography will have little effect on Superior’s ability to defend an action in this court. The first factor therefore weighs in favor of finding personal jurisdiction over Superior. The second factor requires the court" }, { "docid": "16194240", "title": "", "text": "the Court held the effects test to be sufficient for California jurisdiction where the defendants had authored a libelous story, based on California sources, about a California resident, that resulted in harm within California. “In sum, California is the focal point both of the story and of the harm suffered,” id. at 789, 104 S.Ct. 1482, and the defendants could reasonably expect to be haled into court in California, id. at 790, 104 S.Ct. 1482. Bustos does not offer non-conclusional factual allegations that, as in Colder, the defendants “intentionally aimed their ... harmful conduct at the [Texas] resident[s].” Guidry, 188 F.3d at 629; see Felch v. Transportes Lar-Mex SA DE CV, 92 F.3d 320, 326 n. 16 (5th Cir.1996) (crediting “the non-conclusional factual allegations of the complaint”). The defendants had no direct contacts with Texas, and Bustos cannot point to any “intentional ... actions [that] were expressly aimed at [Texas],” Colder, 465 U.S. at 789, 104 S.Ct. 1482, other than the alleged foreseeability that any negligent actions would affect some investors in Texas. Bustos failed to establish a prima facie case that the defendants purposely directed their activities at Texas to have sufficient minimum contacts. The assertion of personal jurisdiction in Texas is unreasonable in this case and fails to comport with the standards of “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendants may prove jurisdiction is unfair based on these factors: “(1) the burden on the nonresident defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental social policies.” Seiferth, 472 F.3d at 276 (internal quotation and citation omitted). We acknowledge that it is rare to refuse jurisdiction on these grounds, McFadin, 587 F.3d at 759, but the facts here are overwhelming. We echo the MJ’s conclusion that “it appears that, dissatisfied with the direction and/or speed at which the Oregon wheels of justice" }, { "docid": "4215980", "title": "", "text": "and used by criminals, as well as defendants knowledge of these events, if they could be authenticated, would support a finding that “defendants’ nationwide distribution scheme [had] been successful in indirectly distributing large numbers of their handguns in the District of Columbia.” 686 F.Supp. at 921. The court rejected defendants’ argument that it had not ‘purposefully availed’ itself of the District of Columbia market. It held that it did not “matter that defendants’ product reached the jurisdiction indirectly, so long as they [had] not sought to curtail their access to this market.” Id. at 923. b. Reasonableness In assessing whether an assertion of jurisdiction is reasonable, five factors will be evaluated: (1) the burden on defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of individual states and the interstate or international community in furthering their appropriate substantive social policies. Asahi Metal Indus, v. California, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Due process criteria are interrelated. Assuming that a constitutional threshold of contacts has been demonstrated, fewer contacts may be necessary where the “reasonableness” factors weigh heavily in favor of an exercise of jurisdiction. See Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.8d at 568 (“Thus, in assessing whether it may exercise jurisdiction over a particular defendant, a court must weigh the relative strengths and weaknesses of each requirement — that is, depending upon the strength of the defendant’s contacts with the forum state, the reasonableness component of the constitutional test may have a greater or lesser effect on the outcome of the due process inquiry.”) (citing Burger King Corp. v. Rudzewicz, 471 U.S. at 477, 105 S.Ct. 2174). c. State Interest In the DES Cases the state interest standard was stressed. 789 F.Supp. at 576. Strong state interest as well as territorial contacts may provide the basis for exercise of constitutional in personam jurisdiction. Those interests need to be balanced" }, { "docid": "20638309", "title": "", "text": "“cannot avoid personal jurisdiction by speculating as to whether another party was actually responsible for the accident.” Id. at 380. Thus, because Seiferth’s claims of failure to warn, negligence, and negligence per se arise out of Camus’s forum contacts, the second step of the Nuovo Pignone analysis is satisfied. The third and final step asks “whether the exercise of personal jurisdiction is fair and reasonable.” Id. at 378. The burden of proof shifts to the defendant to show that the exercise of personal jurisdiction is unfair or unreasonable based on five factors: “(1) the burden on the nonresident defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental social policies.” Id. at 382 (citing Fetch v. Transportes Lar-Mex SA de CV, 92 F.3d 320, 324 (5th Cir.1996)). Because the district court determined that Camus did not have sufficient contacts with Mississippi to permit the exercise of personal jurisdiction, it did not reach the third step. We conclude that Camus directed his activities at Mississippi and purposefully availed himself of the privileges of conducting activities there and that Seiferth’s claims of failure to warn, negligence, and negligence per se arise out of Camus’s Mississippi contacts. We thus vacate the dismissal of these claims and remand to the district court to determine whether the exercise of personal jurisdiction over Camus by a Mississippi court is fair and reasonable. V. Seiferth appeals the denial of limited jurisdictional discovery as to HAI. The standard of review poses a high bar; a district court’s discretion in discovery matters “will not be disturbed ordinarily unless there are unusual circumstances showing a clear abuse.” Alpine View, 205 F.3d at 220. Seiferth had access to the lease of the helicopter and the affidavit of HAI’s president and failed to make even a prima facie showing of jurisdiction. Sei-ferth alleges that further discovery may disclose additional contacts HAI had with Mississippi such as advertisements, phone calls, or e-mail inquiries." }, { "docid": "6253700", "title": "", "text": "email which itself constituted the alleged tort. And in addition to purposefully availing herself of the privilege of conducting computer activities in Connecticut, she directed her allegedly tortious conduct towards MacDermid, a Connecticut corporation. Cf. Calder, 465 U.S. at 790, 104 S.Ct. 1482 (holding California jurisdiction to be proper over Florida writer and publisher who directed their tortious conduct, defamation, toward a California resident). If a defendant has sufficient minimum contacts, as in this case, we must also determine whether the exercise of personal jurisdiction is reasonable under the Due Process Clause. Chloe, 616 F.3d at 172-73. The Supreme Court and our Court consider five factors for determining whether an exercise of jurisdiction is reasonable: Id. at 173 (quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-14, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). A court must consider [1] the burden on the defendant, [2] the interests of the forum State, and [3] the plaintiffs interest in obtaining relief. It must also weigh in its determination [4] the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and [5] the shared interest of the several States in furthering fundamental substantive social policies. Having considered these factors, we conclude that they support the exercise of personal jurisdiction in this case. First, although Deiter would have to travel to Connecticut to defend this suit, this burden alone does not render the exercise of personal jurisdiction unreasonable. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 244 (2d Cir.1999) (holding that burden on Japanese defendant was insufficient to overcome its minimum contacts, particularly because “the conveniences of modern communication and transportation ease what would have been a serious burden only a few decades ago”). Second, both Connecticut and MacDermid have significant interests in resolving the matter in Connecticut. Not only is the company based in Connecticut, which is where the majority of corporate witnesses are located, but also Connecticut has an interest in the proper interpretation of its laws. Chloe, 616 F.3d at 173 (holding that exer cise of personal jurisdiction is reasonable where, inter alia, forum state" }, { "docid": "22161904", "title": "", "text": "S.Ct. at 419. Even if Blakey’s contacts with Texas via his short-lived malpractice insurance arrangement through a Texas law firm and his multi-year pro bono association with the historical society were arguably continuous, we hold that they were not substantial enough to warrant the imposition of general personal jurisdiction over Blakey. See Keeton, 465 U.S. at 779 & n. 11, 104 S.Ct. at 1481 & n. 11. With respect to Belin, his contacts are sporadic and attenuated instead of continuous, and they are definitely not substantial. Consequently, we hold that the assertion of general personal jurisdiction over Blakey and Belin would deprive them of their respective due process liberty interests not to be subjected to suit in a distant forum with which they have little connection. V For the foregoing reasons, the order of the district court is AFFIRMED. . The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents “doing business,” which includes committing a tort in whole or in part, in Texas. Tex.Civ.Prac. & Rem.Code Ann. § 17.02 (Vernon 1986). The Texas Supreme Court has interpreted the \"doing business” requirement broadly, allowing the long-arm statute to reach as far as the federal Constitution permits. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Further, for purposes of the jurisdictional issue only, Blakey and Belin concede that a tort was committed in whole or in part in Texas via the publication of the newspaper article in a Texas newspaper. Thus, the outcome of this case turns wholly on the federal constitutional reach of personal jurisdiction. . The Due Process Clause provides, \"[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. .The factors considered in the fairness inquiry are: [T]he burden upon the nonresident defendant; (2) the interests of the forum state; (3) the plaintiff’s interest in securing relief; (4) \"the interstate judicial system’s interest in obtaining the most efficient resolution of controversies”; and (5) \"the shared interest of the several States in furthering fundamental substantive social policies.” Bullion, 895 F.2d at 216 n. 5 (citing" }, { "docid": "19064906", "title": "", "text": "that Stroman is a local business and that many of its customers are Texans. The court will not transfer the case on inconvenient forum grounds. 5. Venue. Both defendants have objected to venue in the Southern District of Texas. Venue is proper here if “a substantial part of the events or omissions giving rise to the claim occurred” in this district. 28 U.S.C. § 1391(b)(2) (Supp.1998). The defendants argue that the substantial part of events giving rise to the claim—the enforcement of their regulations—occurred in their states. The court disagrees. Stroman complains of what the defendants have done in Texas: trying to regulate business he does in Texas with non-Californians and non-Floridians that happen to involve property in the defendant states. The contested regulation has included sending letters to Stroman and invoking Texas government to regulate Stro-man. Venue in this district is wholly proper. In the case most factually analogous to this one, however, the Supreme Court has held that venue is improper. Leroy v. Great Western, 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). (Incidentally, none of the parties appear to have referred to Leroy.) An Idaho statute restricted purchases of stock with corporations having substantial assets in Idaho. Great Western, a Delaware corporation with Dallas headquarters, attempted to purchase stock in a Washington corporation, Sunshine, that had most of its assets and its executive offices in Idaho. Great Western complied with federal reporting requirements and filed documents with the Idaho Director of Finance. The Department of Finance sent objections and requests for additional information to Great Western in Dallas and then delayed the effective date of the tender offer. Great Western sued the Idaho officials in the Northern District of Texas. They contested venue and jurisdiction in a special appearance. Finding that it had jurisdiction, the district court found venue improper under the general federal venue statute but proper under the Securities and Exchange Act’s special venue provision. It also found that the Idaho act impermissibly burdened interstate commerce. The court of appeals affirmed, holding, in the words of the Supreme Court, that “an Idaho official" }, { "docid": "19823359", "title": "", "text": "merchandise involved in the accident into Laredo, Texas. In his deposition, Garcia simply stated, \"And if they were to hire me, to contract me, then I might have delivered [the shipment involved in the accident] in Texas.” That is the only evidence on this matter. . The facfors that should be considered in conducting this \"fairness\" inquiry are: \"[T]he burden upon the nonresident defendant; (2) the interests of the forum state; (3) the plaintiff's interest in securing relief; (4) `the interstate judicial system's interest in obtaining the most efficient resolution of controversies'; and (5) `the shared interest of the several States in furthering fundamental substantive social policies.'\" Wilson, at 647 n. 3 (citations omitted). . During the hearing held on July 29, 1994, the nature of which we will return to, infra, the district court questioned counsel for both parties regarding personal jurisdiction. The following exchanges took place concerning specific jurisdiction: \"THE COURT: Okay. What about specific jurisdiction? Does that apply when any contacts would arise on an occasional delivery, or is it too remote? Relative to the concept of specific jurisdiction. Why doesn't specific jurisdiction apply when contacts with the U.S. would arise, or would it arise from delivery of goods occasionally by your trucking company, as you say, just occasionally? [Counsel for Lar-Mex]: Are you saying if those particular goods, for example this accident? THE, COURT: Well, by specific jurisdiction, the concept of specific jurisdiction, would that arise at all by occasional delivery, or would that be just general jurisdiction? I mean- [Counsel for Lar-Mex]: That would be general jurisdiction. THE COURT: Not specific to this suit, in other words? [Counsel for Lar-Mex]: Yes. THE COURT: All right. Anything further? At this July 29, 1994, hearing, counsel for the plaintiff argued that the facts of the present case created specific jurisdiction: \"[Counsel for Felch]: So my client on the roadways in Mexico at the time of the occurrence is hit by this truck that is on its way to Nuevo Laredo with goods that are going to be brought into Texas. That is a specific connection between this" }, { "docid": "4153455", "title": "", "text": "Dakota Sportswear, Inc., 946 F.2d 1384, 1391 (8th Cir.1991) (“effects” test applied to case which “[l]ike Colder ... involve[d] intentional tortious wrongdoing — namely, the use of the trademark with knowledge of the infringement”); see also Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 23-24 (2d Cir.1988) (in case asserting fraud, RICO and other claims, Colder supported the constitutionality of jurisdiction over defendants who “reached into” New York by misrepresenting the financial state of a franchisor in order to benefit from selling franchises to be operated in the state). A number of courts in other tobacco litigation have exercised personal jurisdiction over BAT on a Colder theory. See, e.g., Cole v. Tobacco Inst., 47 F.Supp.2d 812, 815-16 (E.D.Tex.1999); Washington v. American Tobacco Co., No. 96-2-15056-8 SEA (Wash.Super.Ct. June 9, 1998); Massachusetts v. Philip Morris, Inc., No. Civ. 95-7378-J (Mass Super.Ct. Mar. 20, 1998). 2. Reasonableness Once it is determined that minimum contacts exist, the reasonableness of exercising jurisdiction must be assessed. Five factors enter into the analysis: (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the controversy; (3) the interest of the plaintiff in obtaining convenient and effective relief; (4) the interest of the interstate judicial system in obtaining the most efficient resolution of the dispute; and (5) the shared interest of the states in furthering fundamental social policies. See Asahi 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); see also Burger King, 471 U.S. at 477, 105 S.Ct. 2174; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Where personal jurisdiction is sought over an alien defendant, consideration of “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the [state] court,” substitutes for the final two factors, and “the Federal interest in Government’s foreign relations polices” also may be a factor. Asahi 480 U.S. at 115, 107 S.Ct. 1026. 3. Adaptation of Due Process to Mass Tort Context The New York Civil Practice Law and Rules and the Federal Rules of Civil" }, { "docid": "16029919", "title": "", "text": "controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi, 480 U.S. at 113, 107 S.Ct. at 1033; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). With respect to the first factor, the Court is of the opinion that Milk Train does not bear a substantial burden in defending this suit in Texas. It is apparent that Plaintiffs, on the other hand, will be severely hampered if they are forced to pursue their claims in New York. The Court is further of the opinion that the state of Texas has an interest in asserting jurisdiction over Milk Train. Foremost, “Texas has a significant interest in preventing its citizens from being exploited by out-of-state employers.” Astorga v. Connleaf, Inc. 962 F.Supp. 93, 96 (W.D.Tex.1996). Texas also has a legitimate interest in offering its residents an adequate forum for redress, especially in light of the fact that its residents were targeted for employment in another state. See Runnels, 764 F.2d at 423 (finding that the exercise of jurisdiction over a nonresident defendant comported with fair play because the defendant targeted Louisiana residents for employment overseas and because Louisiana had a legitimate interest in providing its citizens with reasonable access for redress). The state of Texas also has an interest in enforcing the specif ic provision of its long-arm statute, which provides that a nonresident who recruits Texas residents for employment outside the state, directly or through an intermediary located in the state, is doing business in Texas and subject to service of process in Texas. Tex. Civ. Prac. & Rem.Code Ann. §§ 17.042(3), 17.043 (Vernon 1997); see also Astorga, 962 F.Supp. at 96. In sum, factors one and two weigh in favor of Texas exercising jurisdiction over Milk Train. Factor three also weighs in favor of jurisdiction in Texas because Texas is a more convenient forum for Plaintiffs. Factor four, the judicial system’s interest in efficient resolution of controversies, weighs neither for or against exercising jurisdiction in Texas given that suit in either New York or" } ]

[ { "docid": "19643805", "title": "", "text": "not discriminate among viewpoints within that subject matter. Ibid.For example, a law banning the use of sound trucks for political speech-and only political speech-would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra,at 428, 113 S.Ct. 1505. The Town's Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code's distinctions as turning on \" 'the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.' \" 707 F.3d, at 1069. That analysis is mistaken on both factual and legal grounds. To start, the Sign Code's distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church's meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to display signs in support of a particular candidate, he could have made those signs far larger-and kept them up for far longer-than signs inviting people to attend his church services. If the Code's distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because \"[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,\" Citizens United v. Federal Election Comm'n,558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), we have insisted that \"laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects" } ]

[ { "docid": "6013186", "title": "", "text": "Id. at---, 117 S.Ct. at 867-68. The Court, however, upheld the 15-foot fixed buffer zones around clinic doorways, driveways, and parking lot entrances. Id. at ——, 117 S.Ct. at 868. The Court explained that these fixed buffer zones were necessary to ensure that people and vehicles could enter and exit the clinic facilities, and that the imposition of such fixed buffer zones was appropriate in light of the protesters’ past conduct. Id. at---, 117 S.Ct. at 868-69. The Court also noted that it would “defer to the District Court’s reasonable assessment of the number of feet necessary to keep the entrances clear.” Id. -, 117 S.Ct. at 869. c. Madsen and Schenck Applied to This Case Defendants argue that this case and Madsen differ because the injunction in Madsen was based on prior unlawful acts. They argue that there was no prior unlawful conduct in this case, and that Madsen’s new standard for testing the constitutionality of content-neutral injunctions should be limited to those cases involving prior unlawful acts. The short answer to defendants’ argument is that they are simply wrong in their assumption that there was no prior unlawful conduct in this case. As noted above, the district court, after summarizing defendants’ prior conduct in this case, concluded that the harassing “conduct of the defendants is a nuisance.” (District Court Opinion at 16). The record in this case supports the district court’s conclusion. Defendants also argue that the preliminary injunction burdens more speech than necessary to serve significant government interests. The district court properly noted that the same significant government interests at issue in Madsen are at issue in this case, to-wit: a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy, public safety and order, the free flow of traffic on public streets and sidewalks, and the property rights of citizens. See Madsen, 512 U.S. at 767-69, 114 S.Ct. at 2526; see also Schenck, — U.S. at -, 117 S.Ct. at 866. In what follows, we examine each challenged provision of the preliminary injunction in light of Madsen and Schenck to determine whether" }, { "docid": "15894264", "title": "", "text": "n. 6, 117 S.Ct. 855; Madsen, 512 U.S. at 763 n. 2, 114 S.Ct. 2516; see also Hill, 530 U.S. at 733-34, 120 S.Ct. 2480. There is also little question that this type of injunction serves significant governmental interests. See, e.g., Madsen, 512 U.S. at 767-68, 114 S.Ct. 2516. The articulated public interests supporting the 2000 Injunction are: (1) ensuring public safety and order; (2) protecting freedom to receive reproductive health services; (3) advancing medical privacy and the well-being of patients seeking care at facilities; and (4) safeguarding private property. These are significant governmental interests, capable of supporting injunctive restrictions on protest behavior. The 1992 Injunction imposed fixed fifteen-foot buffer zones around clinic doorways, driveways, and parking lot entrances. See Schenck, 519 U.S. at 380-81, 117 S.Ct. 855. The injunction was upheld by the set of governmental interests similar to those asserted here: “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services.” Id. at 376, 117 S.Ct. 855. Other cases have upheld injunctions regulating protest activities at health clinics in order to serve a similar set of interests. See Madsen, 512 U.S. at 768-73, 114 S.Ct. 2516; see also Hill, 530 U.S. at 715, 120 S.Ct. 2480 (finding an even narrower set of governmental interests sufficiently significant to justify a statutory “no-approach” zone within one hundred feet of clinic entrances). Melfi’s main constitutional objection to the District Court’s injunction is that it is overly expansive, thereby unlawfully limiting her First Amendment rights. The injunction provisions must “burden no more speech than necessary” to serve the significant interests. Schenck, 519 U.S. at 372, 117 S.Ct. 855 (quoting Madsen, 512 U.S. at 765, 114 S.Ct. 2516). Specifically, Melfi challenges three provisions: the expanded buffer zones at Buffalo Gyn Womenser-vices and Planned Parenthood Rochester; the elimination of the sidewalk-counselor exception; and the ban on the use of sound amplification devices. We review each one in turn. A. Expanded Buffer Zones In addition to enjoining Melfi from protesting within fifteen-foot buffer zones at all covered facilities" }, { "docid": "2770713", "title": "", "text": "its entirety.” The City argues that, although the injunction authorizes police officers to read the injunction’s prohibitory language to any individual, that prohibitory language, by its own terms, only applies to named parties and those acting in concert with them. In our view, McKusick’s interpretation of the injunction is foreclosed by the Supreme Court’s interpretation of this same injunction in Madsen. In that decision, the Supreme Court based its holding that the injunction is content-neutral on the fact that the injunction is targeted at a particular group — the named parties and those acting in concert with them — whose activities had become disruptive. In explaining its holding on content-neutrality, the Supreme Court stated: We begin by addressing petitioners’ contention that the state court’s order, because it is an injunction that restricts only the speech of antiabortion protesters, is necessarily content or viewpoint based.... To accept petitioners’ claim would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions in the context of a specific dispute between real parties.... [T]he court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public. Madsen, - U.S. at -, 114 S.Ct. at 2523 (emphasis added). That explanation makes it clear that the Supreme Court did not give the injunction the interpretation that McKu-sick now urges. If it had done so, the Court could not have reached the conclusion that the injunction is content-neutral. Stated somewhat differently, if the Supreme Court had interpreted the injunction as an order against the world to refrain from speech activities expressing a particular viewpoint— specifically, an antiabortion viewpoint — within the 36-foot buffer zone, it almost certainly would not have concluded that the injunction is content-neutral. That the majority in Madsen viewed the injunction as being targeted at a narrowly defined group of persons, instead of at" }, { "docid": "15335005", "title": "", "text": "omitted). Before McCullen, the Supreme Court had decided three cases involving similar buffer zones at medical facilities. In the first two of those cases—Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) — the Court confronted the issue in the context of injunctions prohibiting specific individuals from interfering with public access to clinics. It viewed both restrictions, a thirty-six foot buffer zone in Madsen and a fifteen foot zone in Schenck, as sufficiently narrowly tailored and thus upheld them under intermediate scrutiny. In Madsen, the Court noted that the thirty-six foot buffer zone at issue in that case was created by way of injunctive relief only after a first injunction (which enjoined the specified protesters from blocking or interfering with public access to the clinic) proved insufficient to serve the government’s stated interests. Madsen, 512 U.S. at 769-70, 114 S.Ct. 2516. The Court also emphasized that “the state court found that [those protesters] repeatedly had interfered -with the free access of patients and staff’ to the clinic in question before issuing the injunction, leaving the state court with “few other options to protect access” to the clinic. Id. at 769, 114 S.Ct. 2516. Similarly, in Schenck, the Court upheld the fixed buffer zone because “the record show[ed] that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots.” 519 U.S. at 380, 117 S.Ct. 855. The Schenck Court also struck down a floating bubble zone as insufficiently tailored to the government’s interests. Id. at 377-80, 117 S.Ct. 855. The restriction was overbroad chiefly because of the type of speech it restricted (leafleting and other comments on matters of public concern) and the nature of the location (a public sidewalk). Id. at 377, 117 S.Ct. 855. The Court emphasized the potential for uncertainty that a floating bubble zone creates — “[w]ith" }, { "docid": "6013173", "title": "", "text": "of a single official, who necessarily knows the content and viewpoint of the speech subject to the injunction; the injunction is enforceable through civil contempt, a summary process without the constitutional protection of a jury trial; and the only defense available to the enjoined party is factual compliance with the injunction, not unconstitutionality, ... Lawson, 515 U.S. at 1113, 115 S.Ct. at 2266 (Scalia, J., concurring). We need not address this argument, however, because we have carefully adhered to the principle that injunctions must be remedial. Cf. id. at 1111-12, 115 S.Ct. at 2265. As the Court in Madsen recognized, “[i]n-junctions ... are remedies imposed for violations (or threatened violations) of a legislative or judicial decree.” Madsen, 512 U.S. at 764, 114 S.Ct. at 2524. The Supreme Court in Madsen rejected a prior restraint argument similar to the one asserted by defendants in this case, holding: Not all injunctions which may incidentally affect expression, however, are “prior restraints” in the sense that that term was used in New York Times Co. [v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) ], or Vance [v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam)]. Here petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone. Moreover, the injunction was issued not because of the content of petitioners’ expression, as was the case in New York Times Co. and Vance, but because of their prior unlawful conduct. Madsen, 512 U.S. at 763 n. 2, 114 S.Ct. at 2524 n. 2. We discuss the Madsen context in detail below. Suffice it to say at this point that the context in Madsen is not distinguishable in principle from the instant context. In both eases, the trial court had made a judicial determination that the defendants’ past conduct was harassing and unlawful. See Madsen, 512 U.S. at 757-58, 763-65, 114 S.Ct. at 2521, 2524; see also Schenck, — U.S. at - n. 6, 117 S.Ct. at 865 n." }, { "docid": "15894263", "title": "", "text": "against her. The First Amendment requires that “the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 372, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)). Melfi argues that we should apply one of the more stringent tests for content-based injunctions or for prior restraints. This contention is without merit. It is well settled that an injunction of this nature (ie., directed at protestors outside of abortion clinics but based on their unlawful behavior) is content-neutral. See Schenck, 519 U.S. at 373-74, 117 S.Ct. 855; Madsen, 512 U.S. at 762-64, 114 S.Ct. 2516; see also Hill v. Colorado, 530 U.S. 703, 719-20, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (applying same rule to review of a statutory restriction on protest activities at health care clinics). Nor is such an injunction a prior restraint. See Schenck, 519 U.S. at 374 n. 6, 117 S.Ct. 855; Madsen, 512 U.S. at 763 n. 2, 114 S.Ct. 2516; see also Hill, 530 U.S. at 733-34, 120 S.Ct. 2480. There is also little question that this type of injunction serves significant governmental interests. See, e.g., Madsen, 512 U.S. at 767-68, 114 S.Ct. 2516. The articulated public interests supporting the 2000 Injunction are: (1) ensuring public safety and order; (2) protecting freedom to receive reproductive health services; (3) advancing medical privacy and the well-being of patients seeking care at facilities; and (4) safeguarding private property. These are significant governmental interests, capable of supporting injunctive restrictions on protest behavior. The 1992 Injunction imposed fixed fifteen-foot buffer zones around clinic doorways, driveways, and parking lot entrances. See Schenck, 519 U.S. at 380-81, 117 S.Ct. 855. The injunction was upheld by the set of governmental interests similar to those asserted here: “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services.” Id. at 376, 117 S.Ct." }, { "docid": "15335004", "title": "", "text": "would not have placed the Court at risk of “overruling a precedent.” Id. at 2530. Here, by contrast, the conclusion that the Ordinance is a content-based restriction on speech would require us to overrule our holding in Brown that the Ordinance imposes only a content-neutral ban. We need not take that step, though, as we would reverse the dismissal of the Plaintiffs’ free speech claim even under the lesser scrutiny reserved for content-neutral restrictions on speech. Accordingly, we will assume, as was held in Braum, that the Ordinance is content neutral and apply the intermediate level of scrutiny due such restrictions. b. Brown and its Antecedents To satisfy intermediate scrutiny, a content-neutral limitation on speech “must be ‘narrowly tailored to serve a significant governmental interest.’” McCullen, 134 S.Ct. at 2534 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 796, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). “[B]y demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency.” Id. (internal quotation marks and brackets omitted). Before McCullen, the Supreme Court had decided three cases involving similar buffer zones at medical facilities. In the first two of those cases—Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) — the Court confronted the issue in the context of injunctions prohibiting specific individuals from interfering with public access to clinics. It viewed both restrictions, a thirty-six foot buffer zone in Madsen and a fifteen foot zone in Schenck, as sufficiently narrowly tailored and thus upheld them under intermediate scrutiny. In Madsen, the Court noted that the thirty-six foot buffer zone at issue in that case was created by way of injunctive relief only after a first injunction (which enjoined the specified protesters from blocking or interfering with public access to the clinic) proved insufficient to serve the government’s stated interests. Madsen, 512 U.S. at 769-70, 114 S.Ct. 2516. The Court also emphasized that “the state court" }, { "docid": "3139080", "title": "", "text": "sort of interests that justify some incidental burdening of First Amendment rights”). It is the second part of the definition that draws the plaintiffs’ fire: they argue that the 2007 Act regulates too much speech. But this argument rests on a misconception; it assumes that, in order to survive intermediate scrutiny, a law (and within a law, a buffer zone) must burden no more speech than is absolutely necessary to accomplish the law’s legitimate purpose. Perscrutation of the plaintiffs’ briefs makes it apparent that this misconception arises out of a misreading of the Court’s decisions in Schenck v. Pro-Choice Network, Inc., 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), and Madsen v. Women’s Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). In each instance, the Court applied a “no greater restriction than necessary” standard to determine the validity of an injunction. See Schenck, 519 U.S. at 374, 117 S.Ct. 855; Madsen, 512 U.S. at 765, 114 S.Ct. 2516. But injunctions (which bind only the parties in a particular case and those in privity with them) are more targeted than statutes (which apply broadly to all concerned). This is a critically important distinction; the Court has made it pellucid that the absence of general applicability subjects injunctions to a stricter standard than legislative enactments. See Madsen, 512 U.S. at 764-65, 114 S.Ct. 2516; cf. Ry. Exp. Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (“[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”) (Jackson, J., concurring). A law of general application passes muster under narrow tailoring principles as long as it is not substantially broader than necessary to accomplish the legislature’s legitimate goal. See Ward, 491 U.S. at 799, 109 S.Ct. 2746; see also Madsen, 512 U.S. at 764, 114 S.Ct. 2516. Ward supplies the measuring stick that we must wield. The 2007 Act is a law of general application. Given that it promotes a" }, { "docid": "6013177", "title": "", "text": "restricted the speech of anti-abortion protesters, it necessarily was content- or viewpoint-based. Id. at 761-63,114 S.Ct. at 2523. The Court explicitly rejected this argument on the ground that an injunction, by its very nature, applies only to a particular group or to individuals. Id. The “principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’” Id. (citations omitted). In Madsen, the trial court had not enjoined actors on the basis of their speech, but rather on the basis of their conduct. Id. at 763-65, 114 S.Ct. at 2524. Thus, because the injunction was not content-based, it was not subject to heightened scrutiny. Id. Turning to the injunction, the Court in Madsen developed a new standard for evaluating content-neutral injunctions. The Court noted that the constitutionality of content-neutral, generally applicable statutes is typically assessed under the standards set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791-92, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661- (1989), and similar cases. Because the areas surrounding clinics are typically traditional public fora, these cases require that time, place, and manner regulations be “narrowly tailored to serve a significant governmental interest.” Madsen, 512 U.S. at 764, 114 S.Ct. at 2524. However, injunctions carry a greater risk of restricting speech than generally applicable statutes because injunctions apply only to the person whose prior unlawful conduct prompted the injunction. Accordingly, the Court determined that the standard time, place, and manner analysis was not sufficiently rigorous. Id. at 763-67, 114 S.Ct. at 2524-25. Instead, the Court adopted a new, purposefully stricter standard: whether the challenged provisions of the injunction “burden no more speech than necessary to serve a significant government interest.” Id. at 765, 114 S.Ct. at 2525. The Court in Madsen readily found that numerous significant government interests were protected by the injunction in that case. These included the State’s interest in: (1) protecting a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy; (2) ensuring public safety and order, promoting the free flow of traffic" }, { "docid": "9667430", "title": "", "text": "or the threat of violent altercations, to justify the prohibition enforced. . See, e.g., Schenck, 519 U.S. at 362-63, 117 S.Ct. 855 (upholding fixed buffer zone around reproductive health clinic where dozens of protesters would conduct \"large-scale blockades” of clinic driveways and entrances, throw themselves on top of the hoods of cars, \"grab[], push[], and shov[e]” pregnant women with \"varying levels of belligerence,” and elbow and spit on clinic volunteers, often erupting into violent altercations); Madsen, 512 U.S. at 758, 114 S.Ct. 2516 (upholding fixed buffer zone around reproductive health clinic, where throngs of up to 400 protesters would congregate in the clime’s driveways, surround clinic patients, and picket outside of clinic employees' private residences. These activities produced \"deleterious physical effects,” including elevated anxiety and hypertension, on clinic patients, who were required to receive higher doses of sedation to undergo surgical procedures); New York ex rel. Spitzer, 273 F.3d at 192 (upholding limited buffer zone around reproductive health clinic where protesters shouted at close range, blocked vehicular and pedestrian access until clients \"gave up,” and \"distracted oncoming cars in aggressive ways”); Nat’l Org. for Women, 37 F.3d at 649 (upholding injunction prohibiting obstructing access to reproductive health clinic where protesters engaged in day-long physical blockades of clinic, \"creating a risk of physical or mental harm to patients.”). . See, e.g., United States v. Dinwiddle, 76 F.3d 913 (8th Cir.1996) (noting that because there is \"no disparate-impact theory in First Amendment law,” \"the fact that a statute ... disproportionately punishes those who hold a certain viewpoint does not 'itself render the [statute] content or viewpoint based.' ”) (citing Madsen, 512 U.S. at 763, 114 S.Ct. 2516); Ater v. Armstrong, 961 F.2d 1224, 1228 (6th Cir.1992) (finding that statute treating individuals soliciting contributions differently than those distributing literature was content-neutral because it was aimed at the \"noncommunicative impact” of conduct rather than the substance of speech itself); Boos, 485 U.S. at 320, 108 S.Ct. 1157 (upholding disparate treatment of groups espousing different viewpoints, \"so long as the justifications for regulations have nothing to do with the content\" and are based on the" }, { "docid": "6013209", "title": "", "text": "Florida Supreme Court and this circuit. Madsen, 512 U.S. at 761-63, 114 S.Ct. at 2523. . Defendants in this case argue that the preliminary injunction is content-based because it \"disfavors lawful speech against abortion” at the Clinic and because only abortion protesters were enjoined. Madsen rejected an identical argument: That [defendants] all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. Madsen, 512 U.S. at 763-65, 114 S.Ct. at 2524. See also Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1104 (6th Cir.), cert. denied, 515 U.S. 1121, 115 S.Ct. 2276, 132 L.Ed.2d 280 (1995). This case is also like Madsen in that there is no indication in this record that the district court’s purpose was to regulate defendants' speech because of a disagreement with their message. See National Org. for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C.Cir.1994). . The Court noted that the failure of the first injunction to accomplish its purpose could be taken into consideration in evaluating the constitutionality of the broader injunction. Madsen, 512 U.S. at 769-71, 114 S.Ct. at 2527. . The Court noted that the 300-foot zone around the residences was much broader than the prohibition of \"focused picketing taking place solely in front of a particular residence\" the Court had found constitutional in Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988). Madsen, 512 U.S. at 775-77, 114 S.Ct. at 2530. According to the Courl, the 300-foot residential zone would ban general marching through residential neighborhoods — a ban unsupported by the record. Id. . Schenck was decided after the district court had issued the preliminary injunction at issue in this case. . The Court also struck down the 15-foot floating buffer zones around vehicles approaching and leaving the clinic facilities. Id. at-, 117 S.Ct. at 868. . The Court also upheld" }, { "docid": "9667409", "title": "", "text": "clinic driveways and driveway entrances created a “dangerous situation” because of the “interaction between cars and protesters.” Id. Citing the significant governmental interest in traffic safety, the Court upheld a fixed buffer zone around the clinic. Id. at 376, 117 S.Ct. 855. Here, as in Schenck and Madsen, protesters and Planned Parenthood personnel and clients would walk in Rose Alley. The presence of people in a public thoroughfare undoubtedly constituted a distraction for drivers. The physical dimensions of the alley, which was less than 20 feet wide, as well as the presence of heavy trucks, exacerbated this hazard. We find, therefore, that the governmental interest in the movement of pedestrians in Rose Alley, including protesters, while not “compelling,” was real and could be termed, “significant.” (ii) To survive intermediate scrutiny, a content-neutral restriction must also be narrowly tailored to achieve the interest asserted. Ward, 491 U.S. at 791, 109 S.Ct. 2746. The Supreme Court, however, has mandated a “more searching”' review where a restriction takes the form of an injunction, rather than a legislative enactment. Madsen, 512 U.S. at 768, 114 S.Ct. 2516. We must decide whether heightened scrutiny also applies here, because a police directive, such as the one issued by Sergeant Barth, is similar to an injunction. The District Court did not consider whether the form of the restriction triggers heightened scrutiny. We rely on the principles enunciated in Madsen to determine whether heightened scrutiny is appropriate here. Id. There, the Court considered whether intermediate scrutiny governed the constitutionality of a court injunction that, among other things, excluded abortion protesters within a specified radius of a reproductive health clinic. Id. at 765, 114 S.Ct. 2516. Finding intermediate scrutiny inadequate, the Court observed that injunctions present two risks, warranting a “more stringent application of general First Amendment principles.” Id. First, injunctions do not emanate from deliberative, democratic decisionmaking processes. Id. “Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree.” Id. (citing United States v. W.T. Grant Co., 345 U.S." }, { "docid": "20329106", "title": "", "text": "examining a similar injunction and finding it content-neutral, it is clear that the injunction as a whole is not content-based. In Madsen, the Court concluded that the fact that an injunction “restricts only the speech of antiabortion protestors” does not mean that it is content-directed: That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. Madsen, — U.S. at -, 114 S.Ct. at 2523-24. In the instant case, as in Madsen, the injunction’s purpose is both content- and viewpoint-neutral: the court imposed restrictions on the demonstrators not to suppress their anti-abortion message but “incidental to their antiabortion message because they repeatedly violated the court’s original order.” Id. at -, 114 S.Ct. at 2524. The injunction was imposed on Project Rescue to prevent the irreparable harm that prospective patients would suffer if Project Rescue’s “rescue” activities continued to impede access to abortion services. Pro-Choice I, 799 F.Supp. at 1428. Since the injunction’s purpose is content-neutral, we apply the test set out in Madsen to the contested provisions: whether they “burden no more speech than necessary to serve a significant government interest.” — U.S. at -, 114 S.Ct. at 2525. As the Court explained, this test, while not amounting to the strict scrutiny that we have applied to content-based restrictions of speech, is more rigorous than the test that has traditionally been applied to content-neutral regulations of the time, place, and manner of expression. See, e.g., Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2753 (determining whether the regulations were “narrowly tailored to serve a significant gov ernmental interest”) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)). We apply more rigorous scrutiny to an injunction which restricts expression than to legislation which does so, the Court reasoned, because “[injunctions ... carry greater risks of censorship" }, { "docid": "20329105", "title": "", "text": "be supportable under Pro-Choice Network’s remaining state law claims following the dismissal of its section 1985(3) claim; as the Pro-Choice panel found, slip op. at 6992-94, — F.3d at - -, the district court has not yet had occasion to consider these issues. The issue before us, rather, is solely whether the two contested provisions impermissibly infringe Project Rescue’s First Amendment right to freedom of speech. The threshold issue is whether the injunction, taken as a whole, is content-based and accordingly subject to strict scrutiny, or content-neutral — that is, justified “without reference to the content of the regulated speech,” Madsen, — U.S. at -, 114 S.Ct. at 2523 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 reh’g denied, 492 U.S. 937, 110 S.Ct. 23,106 L.Ed.2d 636 (1989)); R.A.V. v. City of St. Paul, 505 U.S. 377, -, -, 112 S.Ct. 2538, 2542, 2544, 120 L.Ed.2d 305 (1992) — and thus subject to less rigorous examination. In light of the Supreme Court’s recent opinion in Madsen, examining a similar injunction and finding it content-neutral, it is clear that the injunction as a whole is not content-based. In Madsen, the Court concluded that the fact that an injunction “restricts only the speech of antiabortion protestors” does not mean that it is content-directed: That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. Madsen, — U.S. at -, 114 S.Ct. at 2523-24. In the instant case, as in Madsen, the injunction’s purpose is both content- and viewpoint-neutral: the court imposed restrictions on the demonstrators not to suppress their anti-abortion message but “incidental to their antiabortion message because they repeatedly violated the court’s original order.” Id. at -, 114 S.Ct. at 2524. The injunction was imposed on Project Rescue to prevent the irreparable harm that prospective patients would suffer if" }, { "docid": "6013176", "title": "", "text": "blocking or interfering with public access to the clinic and from physically abusing people entering or leaving the clinic. Six months later, plaintiffs sought to broaden the injunction when the protesters continued their unlawful conduct. The Florida trial court found that the protesters had impeded access to the clinic by congregating on the street leading up to the clinic and by marching up to the clinic’s driveways. It found that as vehicles heading toward the clinic slowed to allow the protesters to move out of the way, “sidewalk counselors” would approach and attempt to disburse anti-abortion literature. The number of people outside the clinic varied from “a handful” to 400, and their volume varied from singing and chanting to the use of loudspeakers and bullhorns. The court found that these protests took a physical toll on the clinic’s patients. See Madsen, 512 U.S. at 757-58, 114 S.Ct. at 2521. Doctors and clinic workers were also picketed at their residences and generally harassed. Id. In Madsen, the abortion protesters first argued that because the injunction only restricted the speech of anti-abortion protesters, it necessarily was content- or viewpoint-based. Id. at 761-63,114 S.Ct. at 2523. The Court explicitly rejected this argument on the ground that an injunction, by its very nature, applies only to a particular group or to individuals. Id. The “principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’” Id. (citations omitted). In Madsen, the trial court had not enjoined actors on the basis of their speech, but rather on the basis of their conduct. Id. at 763-65, 114 S.Ct. at 2524. Thus, because the injunction was not content-based, it was not subject to heightened scrutiny. Id. Turning to the injunction, the Court in Madsen developed a new standard for evaluating content-neutral injunctions. The Court noted that the constitutionality of content-neutral, generally applicable statutes is typically assessed under the standards set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791-92, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661- (1989), and similar cases. Because" }, { "docid": "9667408", "title": "", "text": "law. Nonetheless, following Madsen and Schenck, we conclude, on the facts before us, that police did have a “significant” interest in promoting the safe, efficient flow of traffic in Rose Alley. In Madsen, the Supreme Court determined that the government had a “strong interest in the public safety and order, [and] in promoting the free flow of traffic on public streets and sidewalks----” 512 U.S. at 767, 114 S.Ct. 2516. There, pro testers’ presence in a street used to access the clinic — Dixie Way — created a clear traffic hazard. Id. at 769, 114 S.Ct. 2516. Protesters would congregate in Dixie Way, risking collisions with approaching cars. Id. To “ensur[e] that petitioners do not block traffic on Dixie Way” and to reduce the risk of an accident, the Supreme Court upheld a fixed buffer zone around clinic entrances and driveways. Id. In Schenck, the Supreme Court recognized, similarly, a significant governmental interest in vehicular and pedestrian safety. 519 U.S. at 375-76, 117 S.Ct. 855. There, the Court determined that the presence of protesters in clinic driveways and driveway entrances created a “dangerous situation” because of the “interaction between cars and protesters.” Id. Citing the significant governmental interest in traffic safety, the Court upheld a fixed buffer zone around the clinic. Id. at 376, 117 S.Ct. 855. Here, as in Schenck and Madsen, protesters and Planned Parenthood personnel and clients would walk in Rose Alley. The presence of people in a public thoroughfare undoubtedly constituted a distraction for drivers. The physical dimensions of the alley, which was less than 20 feet wide, as well as the presence of heavy trucks, exacerbated this hazard. We find, therefore, that the governmental interest in the movement of pedestrians in Rose Alley, including protesters, while not “compelling,” was real and could be termed, “significant.” (ii) To survive intermediate scrutiny, a content-neutral restriction must also be narrowly tailored to achieve the interest asserted. Ward, 491 U.S. at 791, 109 S.Ct. 2746. The Supreme Court, however, has mandated a “more searching”' review where a restriction takes the form of an injunction, rather than a legislative enactment." }, { "docid": "15555310", "title": "", "text": "by injunction. There is no suggestion in this record that Florida law would not equally restrain similar conduct directed at a target having nothing to do with abortion; none of the restrictions imposed by the court were directed at the contents of petitioner’s message. Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.” We thus look to the government’s purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court’s original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. Id. at ---, 114 S.Ct. at 2523-24 (citations omitted). The language in Madsen applies with equal force in this case. Here, too, “none of the restrictions imposed by the court were directed at the contents of [plaintiffs’] message.” The injunction (as well as the ordinance) seeks to regulate not plaintiffs’ message, but rather the means by which plaintiffs seek to convey their message. That plaintiffs are anti-abortion activists, as opposed to union or environmental activists, is immaterial. So long as they focus their picketing effort on the residence of a particular individual, they are subject to prosecution. Cf. Ater v. Armstrong, 961 F.2d 1224, 1227 (6th Cir.) (restriction at issue deemed content-neutral because it “applies evenhandedly to all those who wish to distribute written materials or solicit funds”), cert. denied, — U.S. -, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). Because we reject plaintiffs’ premise that the modified injunction is content-based, we do not subject the injunction in dispute to strict scrutiny analysis. See Perry Educ. Ass’n v. Perry Local Educators’" }, { "docid": "4818942", "title": "", "text": "the Ordinance is an exercise of viewpoint discrimination— the court’s additional basis for applying strict scrutiny. See Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616 n. 4 (4th Cir.2002) (“The Supreme Court has indicated that a viewpoint-based restriction of private speech rarely, if ever, will withstand strict scrutiny review.” (citing R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395-96, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992))). That is, the court merely surmised that the Ordinance must have been discriminatorily aimed at pregnancy centers “with strict moral or religious qualms regarding abortion and birth-control,” premised on its assumption that only those centers would never provide or refer for abortion or birth control. See O’Brien, 768 F.Supp.2d at 815. But see Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 762-63, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (explaining, in declining to apply strict scrutiny to “an injunction that restricts only the speech of antiabortion protestors,” that “the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based”). The district court failed to view the legislative record in the light most favorable to the City, and thus to credit evidence for summary judgment purposes that the Ordinance was enacted to counteract deceptive advertising and promote public health. Moreover, the court ignored the possibility that there may be limited-service pregnancy centers with no “moral or religious qualms regarding abortion and birth-control,” and who refrain from providing or referring for abortion or birth control for other reasons. Finally, applying strict scrutiny, the district court erred by determining that the Ordinance is not narrowly tailored because “a less restrictive alternative would serve the [City’s] purpose.” See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Even if strict scrutiny proves to be the applicable standard, the City must be accorded the opportunity to develop evidence relevant to the compelling governmental interest and narrow tailoring issues, including, inter alia, evidence substantiating the efficacy of the" }, { "docid": "15555308", "title": "", "text": "contend that the district court’s modified injunction is content-based and that therefore the injunction must be reversed under a strict scrutiny standard. With respect to plaintiffs’ premise, the Supreme Court’s recent decision in Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), is instructive. In Madsen, a group of antiabortion protesters were enjoined by a Florida state court from interfering with public access to an abortion clinic and from physically abusing people attempting to enter or exit the clinic. Six months after the clinic had obtained this injunction, it successfully sought to broaden the injunction, arguing that the protesters had persisted in blocking access to the clinic. The Florida Supreme Court subsequently upheld the modified injunction. Finding the injunction to be content-based, however, the Eleventh Circuit invalidated the injunction. The Eleventh Circuit concluded “that the asserted interests in public safety and order were already protected by other applicable laws and that these interests could be protected adequately without infringing upon the First Amendment rights of others.” Id. at -, 114 S.Ct. at 2523. The Madsen Court took issue with the Eleventh Circuit’s conclusion that the injunction was content-based. The Court- observed: To accept petitioners’ claim [that the injunction is content or viewpoint based] would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a.statute addressed to the general public. The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated" }, { "docid": "3139079", "title": "", "text": "constitutional statute vulnerable to a facial challenge. In sum, we find nothing in either the text or the legislative history of the 2007 Act that deprives that statute of content-neutral status. We proceed, therefore, with intermediate scrutiny, recognizing that the constitutionality of the 2007 Act turns on whether it is narrowly tailored and allows sufficient alternative means of communication. See, e.g., Clark, 468 U.S. at 293,104 S.Ct. 3065. C. Narrow Tailoring I Channels of Communication. A regulation is narrowly tailored if it (i) facilitates a substantial governmental interest that would be less effectively served without the regulation and (ii) accomplishes this end without burdening substantially more speech than necessary. Ward, 491 U.S. at 799, 109 S.Ct. 2746. The first element of this two-part definition is not seriously disputed here. The interests ascribed by the legislature to the 2007 Act (enhancing public safety around RHCFs, improving traffic flow, and the like) are the same as those that we deemed both proper and substantial in McGuire I, 260 F.3d at 48 (describing those interests as “precisely the sort of interests that justify some incidental burdening of First Amendment rights”). It is the second part of the definition that draws the plaintiffs’ fire: they argue that the 2007 Act regulates too much speech. But this argument rests on a misconception; it assumes that, in order to survive intermediate scrutiny, a law (and within a law, a buffer zone) must burden no more speech than is absolutely necessary to accomplish the law’s legitimate purpose. Perscrutation of the plaintiffs’ briefs makes it apparent that this misconception arises out of a misreading of the Court’s decisions in Schenck v. Pro-Choice Network, Inc., 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), and Madsen v. Women’s Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). In each instance, the Court applied a “no greater restriction than necessary” standard to determine the validity of an injunction. See Schenck, 519 U.S. at 374, 117 S.Ct. 855; Madsen, 512 U.S. at 765, 114 S.Ct. 2516. But injunctions (which bind only the parties in a particular case" } ]

[ { "docid": "12158562", "title": "", "text": "of 1934, 15 U.S.C. § 78a et seq. (1970), and the Rules and Regulations of the S.E.C. promulgated thereunder. Jurisdiction is based upon Section 27 of the Act, 15 U.S.C. § 78aa (1970). Marshel also asserts pendent claims of fraud and breach of fiduciary duties by defendants under New York law. Jurisdiction in the Swift action is based upon diversity of citizenship, 28 U.S.C. § 1332(a), and the allegations in the complaint raise issues identical to the pendent claims in the Marshel action. Since we find that the challenged conduct constitutes a violation of Section 10(b) and Rule 10b-5 we do not reach the state law claims. II Appellants contend that unless a legitimate corporate purpose of Concord is furthered by elimination of the minority public shareholders the proposed merger may not be allowed to proceed. Appellees concede there is no such underlying purpose served here. They admit AFW was organized solely as a vehicle to effectuate, in essence, a forced cash repurchase by Concord of its public stockholders’ shares at a time and price determined entirely by the controlling stockholders and for their sole benefit. AFW has no function other than as a device facilitating the Weinsteins’ attempt to utilize the state merger statute to accomplish indirectly what would be impossible to achieve through normal corporate processes because of settled law prohibiting the elimination of minority shareholders by vote of the majority. See Bryan v. Brock & Blevins Co., 490 F.2d 563 (5th Cir.) cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974); cf. Lebold v. Inland Steel Co., 125 F.2d 369 (7th Cir. 1941). Appellees nevertheless argue that absence of any corporate purpose is irrelevant because the proposed merger would comply in all respects with the requirements of the merger statute, N.Y. Business Corporation Law §, 901 et seq. (McKinneys Supp.1975), and, under that statute, appraisal rights are the exclusive remedy provided for dissenting shareholders. Whether the challenged merger is valid under state law is an issue we do not decide. However, in determining the applicability of the federal securities law, we must look through" } ]

[ { "docid": "18167399", "title": "", "text": "incident to some other wholesome business goal.” Vorenberg, Exclusiveness of the Dissenting Stockholder’s Appraisal Right, 77 Harv.L.Rev. 1189, 1192-3 (1964) (emphasis original; footnote omitted). . This expression describing the transaction, taken from the financial press, has been widely adopted by legal commentators. See Comment, The Second Circuit Adopts a Business Purpose Test for Going Private: Marshel v. AFW Fabric Corp. and Green v. Santa Fe Industries, Inc., 64 Calif.L.Rev. 1184 (1976). Alternatively, the more neutral expression “takeout” has been employed in the literature. See, e. g., Borden, Going Private—Old Tort, New Tort or No Tort?, 49 N.Y.U.L.Rev. 987, 989 (1974). . Borden, supra note 51, at 978-88 (footnotes omitted). . Judge Moore, dissenting in Green v. Santa Fe Industries, Inc., 533 F.2d 1283, 1308 (2d Cir.), cert. granted, 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976) (emphasis original; footnote omitted). . See Borden, supra note 51; Brudney, A Note on “Going Private”, 61 Va.L.Rev. 1019 (1975); Vorenberg, supra note 50; Note, Going Private, 84 Yale L.J. 903 (1975). . The trial court, noting that 80% of Conductron’s stock was held by MDC, which, of course, could have effectuated the merger without minority approval, found that the causal relationship required under sections 10(b) and 14(a) was lacking and thus dismissed plaintiff’s individual claims for violations of such sections. The court relied on Mills v. Electric Auto-Lite Co., 396 U.S. 375, 385, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), however footnote 7 of Mills left open the issue before us. Plaintiff argues that its position is upheld by the reasoning of the Second Circuit in Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2 Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975), commented upon in 63 Calif.L.Rev. 563 (1975); 4 Brooklyn L.Rev. 1279 (1976). But in view of the holding below that neither Conductron nor its shareholders have suffered damage from the merger, it would be an academic exercise, which we will not undertake, to determine whether or not on these facts the causation requirement is satisfied. . The term has been defined as" }, { "docid": "12159457", "title": "", "text": "duty to deal fairly with minority shareholders by effecting the merger without any justifiable business purpose. The minority shareholders are given no prior notice of the merger, thus having no opportunity to apply for injunctive relief, and the proposed price to be paid is substantially lower than the appraised value reflected in the Information Statement. We do not hold that the charge of excessively low valuation by itself satisfies the requirements of Rule 10b-5 because that is not the case before us. Similarly, in Marshel the Court said: We hold that when controlling stockholders and directors of a publicly-held corporation cause it to expend corporate funds to force elimination of minority stockholders’ equity participation for reasons not benefiting the corporation but rather serving only the interests of the controlling stockholders such conduct will be enjoined pursuant to Section 10(b) and Rule 10b-5 .... These two decisions cannot be read apart from the milieu of “going private” merger transactions. When a company goes public the purchasing shareholders become owners of the company for better or for worse; if the stock declines in value they expect that they will be able to choose to await better times and a higher price in the future. However, by using a merger device which is not really a merger, some corporations have caused these shareholders to lose their ability to await future benefits of ownership, while increasing the majority interest of the controlling shareholder at the expense of the corporation. The Second Circuit believed that Popkin was inapplicable to “going private” transactions, but did not hold or intimate that Popkin was inapplicable to a situation analogous to it. We find that Popkin contains the more appropriate test to apply in this case; in comparing the facts of Popkin, Green and Marshel to the situation here, the similarity of Popkin cannot be ignored. In Green and Marshel the shareholders were attacking the merger itself as a fraud. In Popkin as here the shareholders do not attack the merger other than upon the fair ness of its terms. In Green and Marshel the merger was a sham" }, { "docid": "12158567", "title": "", "text": "they owe fiduciary obligations by causing Concord to finance the liquidation of the minority’s interest with no justification in the form of a valid corporate purpose. The federal securities law does not confer jurisdiction for instances of corporate mismanagement or self-dealing absent fraud intrinsic to a securities transaction. Here, however, a purchase and sale of securities is at the heart of the fraudulent scheme. See, e.g., Superintendent of Insurance v. Bankers Life & Casualty Co., supra 404 U.S. at 10-13, 92 S.Ct. 165 (1971); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379-80 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2d Cir. 1967); Ruckle v. Roto American Corp., 339 F.2d 24, 29 (2d Cir. 1964). Ill The district court denied plaintiffs’ motions for a preliminary injunction on the ground that since defendants had disclosed all material facts concerning the merger to the minority shareholders in the proxy statement, a cause of action based on § 10(b) and Rule 10b-5 was precluded by this Court’s decision in Popkin v. Bishop, supra. Popkin is inapposite. There a derivative action was brought to enjoin a merger on the grounds that the exchange ratios for the conversion of the common stock of the merging corporations into the stock of the surviving corporation were “unfair” to plaintiff. 464 F.2d at 717. The propriety of the merger itself was not challenged. Since the complaint contained “no allegation or hint of any misrepresentation by defendants or of a failure on their part to disclose any material fact in connection with the merger proposal,” 464 F.2d at 718, its dismissal was upheld by this Court because no fraud had been stated. Compare Schlick v. Penn-Dixie Cement Corp., supra. In the present case the “merger” itself constitutes a fraudulent scheme because it represents an attempt by the majority stockholders to utilize corporate funds for strictly personal benefit. Under these circumstances it would surely be anomalous to hold that a cause of action is stated under § 10(b) and Rule 10b-5" }, { "docid": "12158565", "title": "", "text": "“ability to push through the merger — with or without any other shareholder’s vote — cannot by itself defeat a claim for federal injunctive relief.” 464 F.2d at 718. We hold that when controlling stockholders and directors of a publicly-held corporation cause it to expend corporate funds to force elimination of minority stockholders’ equity participation for reasons not benefiting the corporation but rather serving only the interests of the controlling stockholders such conduct will be enjoined pursuant to Section 10(b) and Rule 10b-5 which prohibits “any act, practice, or course of business which operates or would operate as a fraud in connection with the purchase or sale of any security.” In Drachman v. Harvey, 453 F.2d 732, 736-38 (2d Cir. 1972) (rehearing en banc) shareholders in Harvey Aluminum, Inc. brought a derivative action seeking damages for losses allegedly suffered when the controlling shareholder of Harvey, Martin Marietta Corporation, caused an improvident redemption of an outstanding issue of Harvey’s convertible debentures in order to prevent their possible conversion and consequent dilution of Martin Marietta’s voting control. This Court held that a sufficient claim of fraud against the corporation in connection with a purchase of securities had been stated within the meaning of § 10(b) and Rule 10b-5. See also, Superintendent of Insurance v. Bankers Life & Casualty Co., supra; Schoenbaum Insurance v. Firstbrook, 405 F.2d 215 (2d Cir. 1968) (en banc), cert. denied sub nom., Manley v. Schoenbaum, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Hooper v. Mountain State Securities Corp., 282 F.2d 195 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). In Schoenbaum it was alleged that the Aquitane Company of Canada, Ltd., the controlling shareholder of Banff Oil, Ltd., exercised a controlling influence over the issuance to it of Banff treasury stock for a wholly inadequate consideration. This Court held that, if established, the transaction constituted a violation of Rule 10b-5. In the instant case a similar situation presents itself. The controlling shareholders of Concord have devised a scheme to defraud their corporation and the minority shareholders to whom" }, { "docid": "18167398", "title": "", "text": "but prior to judgment. By order of the District Court, Ruth B. Siegel, Siegel’s wife and executrix, was substituted as a defendant. . See, e. g., Conant, Duties of Disclosure of Corporate Insiders Who Purchase Shares, 46 Cornell L.Q. 53 (1960); Note, Common Law Corporate Recovery for Trading on Non-Public Information, 74 Colum.L.Rev. 269 (1974); Note, Regulation of Insider Trading on the Open Market: A Re-evaluation of Diamond v. Oreamuno, 9 Ga.L.Rev. 189 (1974); Note, From Brophy to Diamond to Schein: Muddled Thinking, Excellent Result, 1 J.Corp.L. 83 (1975). . See 3A W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 1167-1168.2 (rev. perm.ed.1975). . “The acquisition of its own capital stock is not ordinarily an essential corporate function, [citations omitted] and in the absence of special circumstances, corporate officers and directors may purchase and sell its capital stock at will, and without any liability to the corporation.” Brophy, supra, 70 A.2d at 8. . “The term has come to imply a purpose to force a liquidation or sale of a stockholder’s shares, not incident to some other wholesome business goal.” Vorenberg, Exclusiveness of the Dissenting Stockholder’s Appraisal Right, 77 Harv.L.Rev. 1189, 1192-3 (1964) (emphasis original; footnote omitted). . This expression describing the transaction, taken from the financial press, has been widely adopted by legal commentators. See Comment, The Second Circuit Adopts a Business Purpose Test for Going Private: Marshel v. AFW Fabric Corp. and Green v. Santa Fe Industries, Inc., 64 Calif.L.Rev. 1184 (1976). Alternatively, the more neutral expression “takeout” has been employed in the literature. See, e. g., Borden, Going Private—Old Tort, New Tort or No Tort?, 49 N.Y.U.L.Rev. 987, 989 (1974). . Borden, supra note 51, at 978-88 (footnotes omitted). . Judge Moore, dissenting in Green v. Santa Fe Industries, Inc., 533 F.2d 1283, 1308 (2d Cir.), cert. granted, 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976) (emphasis original; footnote omitted). . See Borden, supra note 51; Brudney, A Note on “Going Private”, 61 Va.L.Rev. 1019 (1975); Vorenberg, supra note 50; Note, Going Private, 84 Yale L.J. 903 (1975). . The trial court, noting" }, { "docid": "22548964", "title": "", "text": "on unfair terms, one aspect of which was misrepresentation); Pappas v. Moss, 393 F. 2d 865, 869 (CA3 1968) (“if a 'deception' is required in the present context [of § 10 (b) and Rule 10b-5], it is fairly found by viewing this fraud as though the 'independent' stockholders were standing in the place of the defrauded corporate entity,” where the board of directors passed a resolution containing at least two material misrepresentations and authorizing the sale of corporate stock to the directors at a price below fair market value); Shell v. Hensley, 430 F. 2d 819, 825 (CA5 1970) (derivative suit alleging that corporate officers used misleading proxy materials and other reports to deceive shareholders regarding a bogus employment contract intended to conceal improper payments to the corporation president and regarding purchases by the corporation of certain securities at excessive prices); Rekant v. Desser, 425 F. 2d 872, 882 (CA5 1970) (as part of scheme to cause corporation to issue Treasury shares and a promissory note for grossly inadequate consideration, corporate officers deceived shareholders by making affirma tive misrepresentations in the corporation’s annual report and by failing to file any such report the next year). See Recent Cases, 89 Harv. L. Rev. 1917, 1926 (1976) (stating that no appellate decision before that of the Court of Appeals in this case and in Marshel v. AFW Fabric Corp., 533 F. 2d 1277 (CA2), vacated and remanded for a determination of mootness, 429 U. S. 881 (1976), “had permitted a 10b-5 claim without some element of misrepresentation or nondisclosure”) (footnote omitted). For example, some States apparently require a “valid corporate purpose” for the elimination of the minority interest through a short-form merger, whereas other States do not. Compare Bryan v. Brock & Blevins Co., 490 F. 2d 563 (CA5), cert. denied, 419 U. S. 844 (1974) (merger arranged by controlling stockholder for no business purpose except to eliminate 15% minority stockholder violated Georgia short-form merger statute) with Stauffer v. Standard Brands, Inc., 41 Del. Ch. 7, 187 A. 2d 78 (1962) (Delaware short-form merger statute allows majority stockholder to eliminate the minority" }, { "docid": "23412432", "title": "", "text": "405 F.2d 215, 218-220 (2d Cir. 1968) (en banc), cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Drachman v. Harvey, 453 F.2d 722, 736 (2d Cir. 1972) (en banc); Travis v. Anthes Imperial Limited, 473 F.2d 515, 521-522 (8th Cir. 1973); Coffee v. Permian Corp., 474 F.2d 1040, 1043-1044 (5th Cir.), cert. denied, 412 U.S. 920, 93 S.Ct. 2736, 37 L.Ed.2d 146 (1973); Bryan v. Brock & Blevins Co., Inc., 490 F.2d 563, 569-571 (5th Cir.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974); Green v. Santa Fe Industries, Inc., 533 F.2d 1283, 1289-1291 (2d Cir. 1976), rev’d, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Bailey v. Meister Brau, Inc., 535 F.2d 982, 993 (7th Cir. 1976); Speed v. Transamerica Corp., 99 F.Supp. 808, 828-829 (D.Del.1951), aff’d, 235 F.2d 369 (3d Cir. 1956); Voege v. American Sumatra Corp., 241 F.Supp. 369, 375 (D.Del. 1965). With respect to the first contention, we have previously noted that the stock restriction was enforceable under § 202(c)(1) of the Delaware General Corporation Law without regard for the existence of a “valid” or “lawful” corporate purpose. To the extent the plaintiffs take the position that such a requirement should be superimposed on § 10(b) and Rule 10b-5, we reject it. In Santa Fe Industries, Inc. v. Green, supra, 430 U.S. at 478, 97 S.Ct. 1292, the Supreme Court stated that § 10(b) and Rule 10b-5 should not be extended to cover a cause of action which has been traditionally relegated to state law. The Court emphasized that requirements of state corporation law, such as the existence of a “valid corporate purpose” for the elimination of the minority interest in a short form merger, should not be transposed on a § 10(b) and Rule 10b-5 action because of the danger of vexatious litigation and the potential for interference with state corporate law. Id. at 479 & n. 16, 97 S.Ct. 1292. The Court also said: Absent a clear indication of congressional intent, we are reluctant to federalize the substantial portion of the law of corporations" }, { "docid": "12158564", "title": "", "text": "the technical form to ascertain the substance of the transaction. What this purported “merger” amounts to is a scheme by the appellees, having previously taken advantage of public financing, to appropriate for their personal benefit the entire stock ownership of Concord at a price determined by them and paid out of the corporate treasury at a cost of over $1,600,000. Such conduct is proscribed by the language of Section 10(b) and Rule 10b-5. We do not regard the existence of the state appraisal remedy as negating the appellants’ rights under federal law. Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971); Vine v. Beneficial Finance Co., 374 F.2d 627, 635-36 (2d Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967). “Where Rule 10b-5 properly extends, it will be applied regardless of any cause of action that may exist under state law.” Popkin v. Bishop, 464 F.2d 714, 718 (2d Cir. 1972). Furthermore, as we stated in Popkin, a controlling shareholder’s “ability to push through the merger — with or without any other shareholder’s vote — cannot by itself defeat a claim for federal injunctive relief.” 464 F.2d at 718. We hold that when controlling stockholders and directors of a publicly-held corporation cause it to expend corporate funds to force elimination of minority stockholders’ equity participation for reasons not benefiting the corporation but rather serving only the interests of the controlling stockholders such conduct will be enjoined pursuant to Section 10(b) and Rule 10b-5 which prohibits “any act, practice, or course of business which operates or would operate as a fraud in connection with the purchase or sale of any security.” In Drachman v. Harvey, 453 F.2d 732, 736-38 (2d Cir. 1972) (rehearing en banc) shareholders in Harvey Aluminum, Inc. brought a derivative action seeking damages for losses allegedly suffered when the controlling shareholder of Harvey, Martin Marietta Corporation, caused an improvident redemption of an outstanding issue of Harvey’s convertible debentures in order to prevent their possible conversion and consequent dilution of Martin Marietta’s voting control." }, { "docid": "5946974", "title": "", "text": "behalf of Old Company, despite such effect being accorded to the merger under Delaware law * * 241 F.Supp. at 376. The problem I face is somewhat different since the precise issue passed upon in Delaware has never been decided in Pennsylvania. . See generally Reese & Kaufman, The Law Governing Corporate Affairs: Choice of Law and the Impact of Full Faith and Credit, 58 Colum.L.Rev. 1118, 1125 (1958). . It is interesting to note that in the Societe Magnus case, supra, Judge Di-mock of this court recognized that in certain circumstances the corporation in whose behalf suit is brought would not be a necessary party to the litigation. This reasoning was based upon the holding of Perlman v. Feldmann, supra. Nevertheless, Judge Dimock held that under the facts presented to him the corporation was a necessary party. Societe Magnus & Co. v. Einstein, supra 20 F.R.D. at 38. . The broad definition of a “freeze-out” is any action taken by the persons in control of the corporation resulting in termination of a shareholder’s interest. The term implies “a purpose to force a liquidation or sale of the stockholder’s shares, not incident to some other wholesome business goal.” Yorenberg, Exclusiveness of the Dissenting Stockholder’s Appraisal Right, 77 Harv.L.Rev. 1189, 1192-93 (1964). (Footnote omitted.) See generally O’Neal & Derwin, Expulsion or Oppression of Business Associates 3 (1961). . Professor Vorenberg suggests that “only where there is a plausible business purpose of the corporation beyond the majority’s desire to enlarge their own stock-holdings or to eliminate a minority stockholder should the minority holder be required to choose between what is available to him as a result of the action proposed by the majority and the cash value of his shares.” Vorenberg, supra note 24, at 1204. . Plaintiff exercised her right of appraisal because of defendant’s fraud rather than, as here, failing to exercise dissenter’s rights because of misrepresentations. . The complaint alleges that these transactions took place during the second quarter of 1965 (up to May 3, 1965). In plaintiff’s opposing memorandum, it is stated that this is in error and" }, { "docid": "6738801", "title": "", "text": "deal fairly with each other in its performance, 17 Am.Jur.2d Contracts § 256, p. 653. Plaintiff necessarily relied upon this all-important condition when, by acquiring her shares, she agreed with Old Company and its stockholders that Old Company could be merged upon terms later to be determined. It may be conceded that Rule 10b-5 is inapplicable unless a seller has been deceived. See O’Neill v. Maytag, 339 F.2d 764 (2nd Cir. 1964) Plaintiff at bar was the subject of deception for when she acquired her stock she did so upon the justifiable assumption that any merger would deal with her fairly, only later to find, according to the Complaint, that the terms of the merger were designed to defraud her. In Barnett v. Anaconda Co., 238 F. Supp. 766 (S.D.N.Y.1965), relief under Rule 10b-5 was denied because the plaintiff failed to show a causal relationship between the fraud alleged and the injury claimed. The present Complaint discloses no such infirmity. The frauds al leged culminated in the merger between Old Company and New Company under which plaintiff became obligated to sell her stock at $17 per share, when, according to the Complaint, it was worth substantially more. This would not have occurred in the absence of the frauds. The Complaint prays that (1) a three judge court be convened under 28 U.S.C. §§ 2281 and 2284, (ii) the execution and enforcement of the merger between Old Company and New Company and appraisal proceedings in connection therewith be enjoined, (iii) all contracts of sale between stockholders of Old Company and Deli entered into as a result of Deli’s offer to buy dated June 28, 1960, be declared void, (iv) defendants be enjoined from making any disposition of the assets formerly owned by Old Company, (v) a receiver be appointed for Old Company, (vi) defendants be directed to turn over Old Company’s property to the receiver and to account for all corporate opportunities appropriated from Old Company, (vii) the receiver liquidate the Old Company’s assets and distribute the same to its stockholders, and (viii) for other relief. To what relief plaintiff will" }, { "docid": "22548965", "title": "", "text": "making affirma tive misrepresentations in the corporation’s annual report and by failing to file any such report the next year). See Recent Cases, 89 Harv. L. Rev. 1917, 1926 (1976) (stating that no appellate decision before that of the Court of Appeals in this case and in Marshel v. AFW Fabric Corp., 533 F. 2d 1277 (CA2), vacated and remanded for a determination of mootness, 429 U. S. 881 (1976), “had permitted a 10b-5 claim without some element of misrepresentation or nondisclosure”) (footnote omitted). For example, some States apparently require a “valid corporate purpose” for the elimination of the minority interest through a short-form merger, whereas other States do not. Compare Bryan v. Brock & Blevins Co., 490 F. 2d 563 (CA5), cert. denied, 419 U. S. 844 (1974) (merger arranged by controlling stockholder for no business purpose except to eliminate 15% minority stockholder violated Georgia short-form merger statute) with Stauffer v. Standard Brands, Inc., 41 Del. Ch. 7, 187 A. 2d 78 (1962) (Delaware short-form merger statute allows majority stockholder to eliminate the minority interest without any corporate purpose and subject only to an appraisal remedy). Thus to the extent that Rule 10b-5 is interpreted to require a valid corporate purpose for elimination of minority shareholders as well as a fair price for their shares, it would impose a stricter standard of fiduciary duty than that required by the law of some States. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 Yale L. J. 663, 700 (1974) (footnote omitted). Professor Cary argues vigorously for comprehensive federal fiduciary standards, but urges a “frontal” attack by a new federal statute rather than an extension of Rule 10b-5. He writes: “It seems anomalous to jig-saw every kind of corporate dispute into the federal courts through the securities acts as they are presently written.” Ibid. See also Note, Going Private, 84 Yale L. J. 903 (1975) (proposing the application of traditional doctrines of substantive corporate law to problems of fairness raised by “going private” transactions such as short-form mergers). Mr. Justice Blackmun, concurring in part. Like Mr. Justice Stevens, I refrain from" }, { "docid": "6738800", "title": "", "text": "this Court is free to fashion federal law regardless of provisions of state corporation law. Compare J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 12 L.Ed. 423 (1964). Plaintiff’s demand for an appraisal was not the election of a remedy which bars the instant suit. The demand, according to the Complaint, was made in ignorance of defendant’s frauds. It was not an informed choice. Estate Counseling Services, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 303 F.2d 527 (10th Cir. 1962) is, therefore, in-apposite. Finally, defendants say that plaintiff’s action must be dismissed because there is no allegation that she relied on the manipulative or deceptive devices alleged, as List v. Fashion Park, 340 F.2d 457 (2nd Cir. 1965), is said to require. It may be fairly inferred, however, that when plaintiff purchased her shares she did rely upon the honesty and fair dealing of New Company and those who controlled it. Every contract contains the implied condition that the parties to it will act in good faith and deal fairly with each other in its performance, 17 Am.Jur.2d Contracts § 256, p. 653. Plaintiff necessarily relied upon this all-important condition when, by acquiring her shares, she agreed with Old Company and its stockholders that Old Company could be merged upon terms later to be determined. It may be conceded that Rule 10b-5 is inapplicable unless a seller has been deceived. See O’Neill v. Maytag, 339 F.2d 764 (2nd Cir. 1964) Plaintiff at bar was the subject of deception for when she acquired her stock she did so upon the justifiable assumption that any merger would deal with her fairly, only later to find, according to the Complaint, that the terms of the merger were designed to defraud her. In Barnett v. Anaconda Co., 238 F. Supp. 766 (S.D.N.Y.1965), relief under Rule 10b-5 was denied because the plaintiff failed to show a causal relationship between the fraud alleged and the injury claimed. The present Complaint discloses no such infirmity. The frauds al leged culminated in the merger between Old Company and New Company under" }, { "docid": "21933010", "title": "", "text": "a class action if there was material variation * * * in the kinds or degrees of reliance by the persons to whom they were addressed.” 39 F.R.D. at 103. Here, the Court is convinced that there is no material variation in the kinds of reliance. In a forced sale situation such as this short-form merger where the alleged fraudulent acts were executed by the corporations for the alleged purpose of and with the alleged result of facilitating the purchase of minority-stock at a depressed price, it hardly makes sense to speak in terms of reliance on this or that act. Instead, the only reliance that seems relevant is the more general reliance by the minority stockholders which the law implies at the time the stockholders purchase their shares, namely, reliance on the good faith and fair dealing of the defendants. And, in this, there can hardly be variation among the members of the class. There is ample authority for this position. Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del. 1965), for example, involved the same basic facts as the case at bar. There, the Court noted: “ * * * defendants say that plaintiff’s action must be dismissed because there is no allegation that she relied on the manipulative or deceptive devices alleged * * *. It may be fairly inferred, however, that when plaintiff purchased her shares she did rely upon the honesty and fair dealing of New Company and those who controlled it. Every contract contains the implied condition that the parties to it will act in good faith and deal fairly with each other in its performance * * *. Plaintiff necessarily relied upon this all-important condition when, by acquiring her shares, she agreed with Old Company and its stockholders that Old Company could be merged upon terms later to be determined. * * * “It may be conceded that Rule 10b-5 is inapplicable unless a seller has been deceived. * * * Plaintiff at bar was the subject of deception for when she acquired her stock she did so upon the justifiable assumption" }, { "docid": "8203350", "title": "", "text": "qua security was not the object of any “sale” by defendants to plaintiff, as that term is defined in Section 2(3) of the Securities Act of 1933, 15 U.S.C. § 77b(3), and in Section 3(a) (14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a) (14). The former section defines the term “sale” as including “every contract of sale or disposition of a security or interest in a security, for value.” The latter section states that the term “sale” includes “any contract to sell or otherwise dispose of.” Indicative of the broad reach of such a concept of “sale” is the treatment of defendants’ motion to dismiss the complaint for lack of jurisdiction over the subject matter, and for failure to state a claim upon which relief can be granted, in Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del.1965). In Voege, a minority shareholder brought a derivative action in which she alleged various violations of Section 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, plaintiff alleged a fraudulent course of conduct by which defendants induced a merger between the company in which she held shares and another, the result of which was a required surrender of her stock at a price grossly below its real value. Defendants argued that no rights could accrue to the plaintiff under Rule 10b-5 inasmuch as she never “sold” her stock pursuant to the tender offer of a fixed price per share, but rather demanded an appraisal under the Delaware Corporation Law. In denying defendants’ motion to dismiss the complaint, the court noted the breadth of the statutory definition of sale, acknowledged the contractual nature of the charter of a corporation between the corporation and its shareholders, and between the shareholders inter sese, and held the merger agreement by which shareholders would either surrender their shares for the amount specified in the agreement or accept their appraised value to constitute a contract to sell or otherwise dispose of securities under the 1934 Act. The Court stated: “The frauds allegedly perpetrated upon plaintiff were, in" }, { "docid": "18167372", "title": "", "text": "we note that under Delaware law, MDC itself, owning 80.5 per cent of Conductron shares, had sufficient holdings to approve the merger without additional shareholder approval. The preliminary agreement between McDonnell Douglas and Conductron made on 11 January 1971 provided that the exchange ration would be based either on the average of the market prices of Conductron and McDonnell Douglas stock for one month ending 11 January, the market prices on 11 January, or the book values on 31 December 1970, whichever was most favorable to the public holders of Conductron stock. The merger ration was based on the January 11th market prices of $6.20 per share for Conductron and $23.81 per share for MDC, such date being the most favorable to the public shareholders of Conductron. Thus, there was an exchange of .27 shares of MDC stock for each share of Conductron. MDC shares, having a cash value of some $3 million were paid to Conductron public shareholders for their stock. The merger was consummated on May 28, 1971 and in 1972 MDEC’s separate corporate existence was terminated, MDEC becoming a division of MDC. The private shareholders of Conductron, rather than being bought out, became shareholders in MDC. The cases passing upon the validity of mergers having the effect of eliminating the private shareholders agree on one basic proposition, namely, that the presence or absence of a legitimate business purpose for the merger is of critical importance in appraising the bona fides of the transaction. This factor we find stressed in Green v. Santa Fe Industries, Inc., supra, 533 F.2d at 1291, which held that a claim is stated under Rule 10b-5, when it charges “that the majority has committed a breach of its fiduciary duty to deal fairly with minority shareholders by effecting the merger without any justifiable business purpose”, and in Bryan v. Brock & Blevins Co., 490 F.2d 563, 570 (5th Cir.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974): [T]he trial court found the absence of a “business purpose” for the proposed merger * * *. In the absence of such" }, { "docid": "22002240", "title": "", "text": "shareholders and their representative John Hundahl are neither purchasers nor sellers of securities, they do not have standing to sue for injunctive relief under Rule 10b-5. We agree that the class does not satisfy the purchaser/seller requirement; however, because they seek injunctive relief, they nonetheless have standing. Defendants’ motion to dismiss the nonselling shareholders’ class claims for lack of standing therefore is denied. Plaintiffs argue that although the class members may not have actually sold any stock, they are in fact sellers within the Securities Exchange Act. Section 3(a)(14) defines the terms “sale” and “sell” to “include any contract to sell or otherwise dispose of” securities. Plaintiffs’ analysis is as follows: a corporation’s charter constitutes a contract between the corporation and its stockholders. The provisions of the state’s corporation laws are a part of each corporation’s charter. When the class members purchased their United stock, they implicitly agreed that if another corporation were to acquire a certain majority of United’s outstanding stock, that corporation could cause a merger with United. Mutual, upon successful completion of its tender offer, owned more than 80% of United’s outstanding stock and thus gained the right to effect such a short-form merger. See Art. 44-224.04, Nebraska Insurance Code; Art. 21-2073, Nebraska Business Corporation Act. Plaintiffs argue that they have uncovered considerable evidence of Mutual’s intention to exercise its right to merge and the Mutual’s manipulative conduct is in furtherance of this intention. They contend that under these facts the minority shareholders of United have standing as sellers to seek Rule 10b-5 injunctive relief. We reject plaintiffs’ argument. Plaintiffs place great emphasis on Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del.1965). In that case the court adopted the same analysis which plaintiffs here propose. It concluded that because the manipulation alleged was related to such a vital part of the “contract” as the fixing of the purchase price, the plaintiffs had standing to sue. For several reasons, we decline to apply Voege to this case. First, contrary to the plaintiffs’ contention, the Fifth Circuit did not adopt the Voege analysis in Dudley v. Southeastern" }, { "docid": "12426835", "title": "", "text": "any value for his stock, appellant must exchange the shares for money from appellee, as a practical matter appellant must eventually become a party to a ‘sale,’ as that term has always been used.” 374 F.2d at 634. In these circumstances the Second Circuit held the plaintiff a forced seller, with standing under the rule. 374 F.2d at 635. This “forced sale” rationale was applied to a tender-offer situation in Crane Company v. Westinghouse Air Brake Company, supra,, 419 F.2d 787 (C.A.2, 1969). Crane proposed a merger with Westinghouse which it sought to accomplish through a tender offer to Westinghouse’s shareholders, under which the former acquired substantial amounts of the latter’s stock. Westinghouse’s management decided, however, that American Standard, Inc. was a more companionable suitor, and through a series of market manipulations (it was alleged) the Crane proposal was defeated by vote of the stockholders, allowing Westinghouse to be merged into American Standard. Shares of American Standard were then distributed to Westinghouse stockholders, including Crane, which American Standard threatened with a divestiture action under the anti-trust laws unless Crane sold its holdings. Crane began selling its American Standard stock and brought suit. The court held that Crane had standing, at least as a forced seller of the shares it owned at the time of trial, to assert American Standard’s violations of Rule 10b-5. Vine’s informing principle, carried forward in Crane, is that a shareholder should be treated as a seller when the nature of his investment has been fundamentally changed from an interest in a going enterprise into a right solely to a payment of money for his shares. See Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del.1965). That rationale has recently been applied by this court to a liquidation in a case that in our view is indistinguishable from the one before us. In Coffee v. Permian Corporation, supra, 434 F.2d 383 (1970), a minority stockholder (Coffee) sued under § 10(b) and Rule 10b-5, alleging that his corporation had been substantially liquidated solely for the benefit of its 80 per cent corporate stockholder (Permian). Coffee’s complaint was" }, { "docid": "21933011", "title": "", "text": "involved the same basic facts as the case at bar. There, the Court noted: “ * * * defendants say that plaintiff’s action must be dismissed because there is no allegation that she relied on the manipulative or deceptive devices alleged * * *. It may be fairly inferred, however, that when plaintiff purchased her shares she did rely upon the honesty and fair dealing of New Company and those who controlled it. Every contract contains the implied condition that the parties to it will act in good faith and deal fairly with each other in its performance * * *. Plaintiff necessarily relied upon this all-important condition when, by acquiring her shares, she agreed with Old Company and its stockholders that Old Company could be merged upon terms later to be determined. * * * “It may be conceded that Rule 10b-5 is inapplicable unless a seller has been deceived. * * * Plaintiff at bar was the subject of deception for when she acquired her stock she did so upon the justifiable assumption that any merger would deal with her fairly, only later to find, according to the Complaint, that the terms of the merger were designed to defraud her.” 241 F.Supp. at 375. Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir. 1967), directs the same result. Like Voege and the instant case, Vine involved a short-form merger attacked as fraudulent. The Court held: “The need for such reliance [on defendants’ fraudulent representations] by a plaintiff has been the subject of much recent scholarly analysis. * * * Whatever need there may be to show reliance in other situations, * * * we regard it as unnecessary in the limited instance when no volitional act is required and the result of a forced sale is exactly that intended by the wrongdoer.” 374 F.2d at 635. Defendants mention several other possible individual questions. The Court, however, is disposed to find that plaintiffs have carried the burden of proving predominance. B. Superiority of Class Action In view of the predominance of common questions in this suit and the" }, { "docid": "18167373", "title": "", "text": "corporate existence was terminated, MDEC becoming a division of MDC. The private shareholders of Conductron, rather than being bought out, became shareholders in MDC. The cases passing upon the validity of mergers having the effect of eliminating the private shareholders agree on one basic proposition, namely, that the presence or absence of a legitimate business purpose for the merger is of critical importance in appraising the bona fides of the transaction. This factor we find stressed in Green v. Santa Fe Industries, Inc., supra, 533 F.2d at 1291, which held that a claim is stated under Rule 10b-5, when it charges “that the majority has committed a breach of its fiduciary duty to deal fairly with minority shareholders by effecting the merger without any justifiable business purpose”, and in Bryan v. Brock & Blevins Co., 490 F.2d 563, 570 (5th Cir.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974): [T]he trial court found the absence of a “business purpose” for the proposed merger * * *. In the absence of such business purpose Power Erectors was purely a sham party created to circumvent the rule of law that prohibits a majority of stockholders of a corporation, * * * to force the minority interests to surrender their stock holdings. Among other bona fide business reasons, imminent financial collapse has been a long-recognized justification for a take-out. Thus in Matteson v. Ziebarth, 40 Wash.2d 286, 242 P.2d 1025 (Wash.1952) (en banc), the failing Ziebarth Corporation located another concern willing to continue the business of the corporation under a license agreement, but only if it received an option to purchase all Ziebarth stock, against the wishes of one Matteson who owned an 11 per cent stock interest. In addition to other reasons for upholding the merger transaction, the court stressed that “[tjhere was good reason to believe that this option contract was the only salvation for the hard-pressed Ziebarth Corporation” and distinguished an earlier case holding a merger to be fraudulent on the ground that the merger in that case was “not for any bona fide business reason," }, { "docid": "12159456", "title": "", "text": "to the minority, and that therefore it was important for the federal courts to scrutinize the transaction under Rule 10b-5 regardless of disclosure. In Marshel v. AFW Fabric Corp., 533 F.2d 1277, No. 75-7404 (2d Cir. 1976), the Court reached the same conclusion on another “going private” merger transaction even though no allegation was made that notice was not given; in fact, in Marshel the Court assumed that prior disclosure had occurred, but stated that prior disclosure was irrelevant because the minority were helpless to stop the merger outside of the courts. The shareholders believe that Green and Marshel equate breach of fiduciary duty with fraud, and that unfair merger terms are therefore actionable under Rule 10b-5. In view of the fact that both decisions declined to overrule Popkin, we must construe the holding of these cases more narrowly. In Green the Court said: We hold that a complaint alleges a claim under Rule 10b-5 when it charges, in connection with a Delaware shortform merger, that the majority has committed a breach of its fiduciary duty to deal fairly with minority shareholders by effecting the merger without any justifiable business purpose. The minority shareholders are given no prior notice of the merger, thus having no opportunity to apply for injunctive relief, and the proposed price to be paid is substantially lower than the appraised value reflected in the Information Statement. We do not hold that the charge of excessively low valuation by itself satisfies the requirements of Rule 10b-5 because that is not the case before us. Similarly, in Marshel the Court said: We hold that when controlling stockholders and directors of a publicly-held corporation cause it to expend corporate funds to force elimination of minority stockholders’ equity participation for reasons not benefiting the corporation but rather serving only the interests of the controlling stockholders such conduct will be enjoined pursuant to Section 10(b) and Rule 10b-5 .... These two decisions cannot be read apart from the milieu of “going private” merger transactions. When a company goes public the purchasing shareholders become owners of the company for better or for" } ]

[ { "docid": "1317275", "title": "", "text": "and this Court consistently have termed mandatory and jurisdictional. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that “the taking of an appeal within the prescribed time is mandatory and jurisdictional”); Feltner v. Lamar Adver. of Tenn., Inc., 200 Fed.Appx. 419, 422 (6th Cir.2006) (“Compliance with Fed. R.App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend.”) (quoting Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989)); In re Sulzer Orthopedics & Knee Prosthesis Prods. Liab. Litig., 399 F.3d 816, 817 (6th Cir.2005) (quoting Browder v. Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) for the proposition that the thirty-day limit in which to file an appeal is “mandatory and jurisdictional”). Most recently, in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), affirming a decision by this Court, the Supreme Court held that “[the petitioner’s] failure to file his notice of appeal in accordance with the statute ... deprived the Court of Appeals of jurisdiction” and distinguished the cases on which the plaintiff seeks to rely. Id. at 210-13, 127 S.Ct. 2360; see also Reed Elsevier, Inc. v. Muchnick, 559 U.S. -, 130 S.Ct. 1237, 1247-49, 176 L.Ed.2d 17 (2010) (discussing Bowles). In light of this precedent, the district court did not err in holding it lacked authority to grant the plaintiffs untimely motion. Alternatively, the plaintiff argues that, even if Rule 4’s time limits are mandatory and jurisdictional, it was entitled to an extra three days to file a notice of appeal pursuant to Federal Rule of Civil Procedure 6(d) (“When a party may or must act within a specified time after service and service is made [by a method other than handing it to the party or leaving it at his office or dwelling] 3 days are added after the period would otherwise expire ....”) and Federal Rule of Appellate Procedure 26(c) (“When a party may or must act within a specified time after service, 3 calendar days are" } ]

[ { "docid": "22808557", "title": "", "text": "PRYOR, Circuit Judge: This appeal is on remand from the Supreme Court of the United States for us to reconsider whether the deadline for a defendant to file a notice of appeal in a criminal case under Federal Rule of Appellate Procedure 4(b) is jurisdictional. Jose Eduardo Lopez pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. 21 U.S.C. § 846. After the district court granted Lopez’s construed motion for an extension of time in which to file a notice of appeal, this Court sua sponte dismissed Lopez’s appeal for lack of jurisdiction because Lopez’s notice of appeal was untimely under Rule 4(b). The Supreme Court vacated that order and remanded for further consideration in the light of Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Lopez v. United States, — U.S. -, 128 S.Ct. 806, 169 L.Ed.2d 605 (2007). After reconsideration, review of the record, supplemental briefs, and oral arguments, we agree with Lopez and the United States that the time limits for a criminal defendant under Rule 4(b) are not jurisdictional because they are not based on a federal statute. Although the deadline in Rule 4(b) for Lopez’s appeal is not jurisdictional, we grant the request of the United States to dismiss Lopez’s appeal as untimely. I. BACKGROUND Lopez pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. 21 U.S.C. § 846. The district court sentenced Lopez at the low end of the guidelines range to a term of 235 months of imprisonment, followed by five years of supervised release. Final judgment was entered on February 6, 2007. The ten-day period for filing a notice of appeal expired on February 21, 2007. Fed. R.App. P. (4)(b)(l)(A). The 30-day period for extending the time to file a notice of appeal expired on March 23, 2007. Fed. R.App. P. 4(b)(4). On April 9, 2007, the clerk of the district court received and docketed Lopez’s pro se “Motion for Ap peal,” dated March 29, 2007. The district court construed Lopez’s motion as a motion for an extension of time in which to" }, { "docid": "4308371", "title": "", "text": "the balance Congress struck means the end of Cohen’s appeal. The district court entered its remand order on October 9, 2008, but failed to enter a separate document containing the judgment. Thus, because the district court’s remand order constituted a final order, Cohen’s last day to appeal came 180 days later, on April 17, 2009 (or, if the relevant final order is the Amended Notice of the remand order, April 25, 2009). Because Cohen’s notice of appeal was filed on July 22, 2009, it was untimely, and we lack jurisdiction. Ill “If rigorous rules like the one applied today are thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits.” Bowles, 551 U.S. at 214, 127 S.Ct. 2360. For now, we must dismiss Cohen’s appeal. DISMISSED. . On September 19, 2007, Cohen posted on his website an interview summary designated confidential by the defendants. On September 27, 2007, Cohen filed an internal complaint with the San Francisco Police Department that included an edited version of the video of Fong's deposition as evidence. Finally, McCoy filed in the court’s public record confidential excerpts from Fong's deposition transcript without attempting to file them under seal. . The Court relied heavily on Moses H. Cone Mem’l Hosp. v. Mercury Constr. Coip., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), in which the Court held that an abstention-based stay order was appealable under § 1291 both because it satisfied the test for \"finality” and the test for an appealable \"collateral order.” Id. at 10-11, 103 S.Ct. 927. . The Advisoty Committee originally allowed for the entry of judgment 60 days after an otherwise final order, but extended the deadline to 150 days because although \"[a] 60-day period of inactivity is not sufficiently rare to signal to litigants that the court has entered its last order.... 150 days of inactivity is much less common and thus more clearly signals to litigants that the court is done with their case.” Fed. R.App. P. 4 advisory committee’s note." }, { "docid": "14993470", "title": "", "text": "court that I am filing an appeal of this court’s Memorandum And Order of 29 July, 2011; received on 15 Aug, 2011.” Defendant’s appeal is now before us for review. The first question we address is whether Defendant timely filed his notice of appeal to this court. If so, the second question is whether the district court properly denied Defendant’s motion for reconsideration. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I. We construe Defendant’s motion for modification of his sentence as a motion brought under 18 U.S.C. § 3582(c)(2). The motion therefore addresses a criminal matter, the appeal of which is governed by Fed. R.App. P. 4(b). United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir.2003). A criminal defendant must file a notice of appeal within fourteen days of the judgment or order being appealed. Fed. R.App. P. 4(b)(1)(A). Unlike in civil cases, a timely appeal in a criminal case is not jurisdictional, but rather an “inflexible claim-processing rule.” United States v. Garduño, 506 F.3d 1287, 1291 (10th Cir.2007). Thus, a criminal defendant’s failure to file a timely notice of appeal does not deprive us of jurisdiction. Nevertheless, “the time bar in Rule 4(b) must be enforced by this court when properly invoked by the government.” United States v. Mitchell, 518 F.3d 740, 744 (10th Cir.2008). We may raise Rule 4(b)’s time bar sua sponte, but this power “is limited and should not be invoked when judicial resources and administration are not implicated and the delay has not been inordinate.” Id. at 750. Here, Defendant filed his notice of appeal on August 29, 2011, twenty-eight days after the district court entered its order denying the motion for reconsideration on August 1, 2011. The notice was therefore untimely. Nevertheless, an untimely notice of appeal does not always require dismissal. Rule 4(b) allows a district court to extend the filing period for an additional thirty days “[ujpon a finding of excusable neglect or good cause.” Fed. R.App. P. 4(b)(4). Defendant did not request an extension, but “a defendant who filed his notice of appeal within the Rule 4(b)" }, { "docid": "2843169", "title": "", "text": "of appeal was timely. See id. A district court may grant an extension of time for filing a notice of appeal on a showing of good cause or excusable neglect, but the extension is limited to no later than thirty days after expiration of the applicable appeal period or fourteen days after the date the court’s extension order is entered, whichever is later. Fed. R.App. P. 4(a)(5)(C). Here, the district court granted Brown an extension to file his notice of appeal until September 20, 2011, more than the thirty days allowed under Federal Rule of Appellate Procedure 4(a)(5)(C). Although this date was more than thirty days after the expiration of Brown’s sixty-day appeal period, it was within fourteen days from September 8, 2011, the date the court’s extension order was granted. Thus, the court granted Brown a permissible extension period to file his notice of appeal. Brown filed his notice of appeal on September 12, 2011. Because Brown filed his notice of appeal prior to the September 20, 2011 deadline, his notice of appeal was timely. B. Did the district court err when it refused to enforce the alleged, oral post-plea agreement by the Government to request a Rule 35(b) reduction of sentence? Brown contends that the district court erred in refusing to enforce the Government’s alleged promise to file a Rule 35(b) motion to reduce his sentence in exchange for his cousin’s assistance. He argues, as he did before the district court, that the Government bargained away its discretion to file the Rule 35(b) motion. To support this argument, Brown points to Santobello v. New York, 404 U.S. 257, 92 5.Ct. 495, 30 L.Ed.2d 427 (1971), where the Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello, 404 U.S. at 262, 92 S.Ct. 495. He argues that Santobello applies to post-plea agreements intended to induce cooperation with the Government. See, e.g., Williams v. Spitzer, 246 F.Supp.2d 368 (S.D.N.Y.2003)" }, { "docid": "55824", "title": "", "text": "EDITH H. JONES, Chief Judge: Appellant, Dr. Elizabeth Kinsley, alleged state law claims against Lakeview Regional Medical Center (“Lakeview”) and its CEO Max Lauderdale because in 2001, Lakeview refused to sell her a plot of undeveloped land suitable for the expansion of her medical office. We do not dwell further on the background of the case because, as Appellees contend, this appeal must be dismissed as untimely. The district court granted Appellees’ motion to dismiss for failure to state a claim on November 29, 2007. According to the rules of appellate procedure, Dr. Kinsley’s notice of appeal was due on December 31, thirty days after the district court’s final judgment. On December 26, Dr. Kinsley filed a document with the district court that purported to be a notice of appeal, but the entry on the court’s electronic docket sheet for that day instead contains a Request For Oral Argument that was identical to a pleading she filed on September 11, 2007, seeking a hearing on the motion to dismiss. The December 26 docket entry describes Dr. Kinsley’s notice of appeal as “deficient.” On January 2, 2008, the docket sheet shows that Dr. Kinsley re-filed a sufficient notice of appeal after having filed another deficient notice—actually, the same Request For Oral Argument, according to the docket sheet—earlier that same day. The filing of a timely notice of appeal, within thirty days after entry of the court’s judgment, is mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2860, 2366, 168 L.Ed.2d 96 (2007); 28 U.S.C. § 2107(a); F.R.A.P. 4(a)(1)(A) (“in a civil case ... the notice of appeal must be filed with the district clerk within thirty days after the judgment ... appealed from is entered.”). Two questions arise from the foregoing circumstances. The first question is whether Dr. Kinsley’s initial filing was sufficient and timely. If it was not, was the December 31 deadline extended in any way, thus rendering timely her ultimately sufficient January 2nd notice of appeal? Dr. Kinsley asserts that the untimeliness argument is unfounded because her notice of appeal was delivered to" }, { "docid": "2550103", "title": "", "text": "and jurisdictional,” Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir.1988) (citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)), meaning that we are not at liberty to overlook a defect with the notice of appeal no matter how compelling an appellant’s argument may be. The thirty-day deadline serves an important purpose, which is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appel-lees that they are freed of the appellant’s demands.” Browder, 434 U.S. at 264, 98 S.Ct. 556 (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943) (per curiam)). Rule 4 does provide certain exceptions to and extensions of the thirty-day time requirement, such as cases in which the United States is a party, Fed. R.App. P. 4(a)(1)(B), and cases in which a party files certain post-judgment motions, Fed. R.App. P. 4(a)(4). We do not have authority, however, to create additional exceptions based on our own sense of what is equitable or fair. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (repudiating the non-statutory “unique circumstances” exception and holding that federal courts have “no authority to create equitable exceptions to jurisdictional requirements”). This legal background compels the conclusion that we must dismiss Maricopa County’s appeal as untimely. The district court orders that Maricopa County has challenged in its notice of appeal were issued years ago, between 2011 and 2014. By filing its notice of appeal on May 15, 2015, Maricopa County’s appeal does not come close to complying with the thirty-day deadline. The exceptions to the deadline set out in Rule 4 are of no help either and Maricopa County has never argued that any of them applies here. Because the County’s notice of appeal is untimely and no exceptions to the deadline apply, it has not carried its burden of invoking our jurisdiction and we must dismiss this appeal." }, { "docid": "2550104", "title": "", "text": "We do not have authority, however, to create additional exceptions based on our own sense of what is equitable or fair. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (repudiating the non-statutory “unique circumstances” exception and holding that federal courts have “no authority to create equitable exceptions to jurisdictional requirements”). This legal background compels the conclusion that we must dismiss Maricopa County’s appeal as untimely. The district court orders that Maricopa County has challenged in its notice of appeal were issued years ago, between 2011 and 2014. By filing its notice of appeal on May 15, 2015, Maricopa County’s appeal does not come close to complying with the thirty-day deadline. The exceptions to the deadline set out in Rule 4 are of no help either and Maricopa County has never argued that any of them applies here. Because the County’s notice of appeal is untimely and no exceptions to the deadline apply, it has not carried its burden of invoking our jurisdiction and we must dismiss this appeal. Maricopa County offers several arguments in support of its assertion that we should consider the merits of its appeal, but none is persuasive. First, it argues that its appeal is timely because its notice of appeal was filed within thirty days after we issued our opinion in Melendres II. The novelty of this argument is best illustrated by the fact that Maricopa County offers no supporting authority for it. Nothing in 28 U.S.C. § 2107(a) or Rule 4(a) allows a party to appeal from an appellate decision with which it disagrees. Moreover, that the County filed its appeal within thirty days of our Melendres II decision is irrelevant because, under Rule 4(a), an appeal must be filed “within 30 days after entry of the judgment or order appealed from.” As the County specified in its notice of appeal, the orders “appealed from” here are the district court’s orders entered between 2011 and 2014. Therefore, it makes no difference that the County filed its notice of appeal within thirty days of our Melendres II decision. Second," }, { "docid": "15357137", "title": "", "text": "district court entered judgment against her. If CSX were correct, this court would lack jurisdiction over her appeal. See Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (compliance with time limits on filing appeal is “mandatory and jurisdictional”). We find that Carlson’s notice of appeal was timely. Judgment was entered on March 19, 2013. Within just a few days, Carlson’s lawyers told her they would no longer represent her, but they did not move to withdraw their appearances. Then on March 26 Carlson filed a pro se “motion to reconsider,” explaining that her lawyers had quit and asking the court to reconsider the dismissal of her claims. She said in the motion that she had actually submitted a copy of the settlement agreement, and she argued that the court had mistakenly accepted certain misrepresentations by CSX. On April 22, more than 30 days after the entry of judgment, the district court entered an order “striking” Carlson’s motion because she had signed it herself despite— technically, at least — still being represented by counsel. See Fed.R.Civ.P. 11(a). Two days later, Carlson’s lawyers finally filed motions to withdraw, which the court granted. Then, on May 1, nine days after the district court had stricken her motion, new counsel for Carlson filed her notice of appeal. In a private civil case like this one, a party normally has 30 days from the entry of judgment to file a notice of appeal. See Fed. R.App. P. 4(a)(1)(A). For Carlson that would have been April 18. But if a party files a timely motion listed in Federal Rule of Appellate Procedure 4(a)(4)(A), which includes a motion under Federal Rule of Civil Procedure 59(e) to alter or amend a judgment, the 30-day window to appeal runs from the time the district court “disposes” of the motion. Our jurisdiction therefore depends on the effect of Carlson’s pro se motion for reconsideration and the district court’s order striking it. A motion under Rule 59(e) need not be labeled as such or use the words “alter or amend” so long as it “instead" }, { "docid": "4308370", "title": "", "text": "expired because it never began to run.” Id. at 163; see also Fed. R.App. P. 4, advisory committee’s notes (2002 amendments). In light of that change, the court held, FRAP’s 30-day clock began to run “150 days after the entry of the May 6 order,” and the appeal was timely. Id. at 163. And in TDK Elees. Corp. v. Draiman, 321 F.3d 677 (7th Cir.2003), the Seventh Circuit commented that, under the new rule, “once the judge has resolved the case, even if by an order that does not satisfy the rules, and 150 days have lapsed, the decision is treated as if final even though formally defective.” Id. at 679-80 (emphasis in original). “Because Congress decides ... whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.” Bowles v. Russell, 551 U.S. 205, 212-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Congress has decided that ensuring finality eventually becomes more important than strictly enforcing Rule 58’s separate document requirement. In this case, the balance Congress struck means the end of Cohen’s appeal. The district court entered its remand order on October 9, 2008, but failed to enter a separate document containing the judgment. Thus, because the district court’s remand order constituted a final order, Cohen’s last day to appeal came 180 days later, on April 17, 2009 (or, if the relevant final order is the Amended Notice of the remand order, April 25, 2009). Because Cohen’s notice of appeal was filed on July 22, 2009, it was untimely, and we lack jurisdiction. Ill “If rigorous rules like the one applied today are thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits.” Bowles, 551 U.S. at 214, 127 S.Ct. 2360. For now, we must dismiss Cohen’s appeal. DISMISSED. . On September 19, 2007, Cohen posted on his website an interview summary designated confidential by the defendants. On September 27, 2007, Cohen filed an internal complaint with the San Francisco Police Department that included an edited version of the" }, { "docid": "19341732", "title": "", "text": "notice never filed”); Futernick v. Sumpter Twp., 207 F.3d 305, 312 (6th Cir.2000) (quoting language from Barrow, 977 F.2d at 1103, which in turn cited Williams in support of its holding); 16A Charles Wright & Arthur R. Miller, Federal Practice and Procedure Jurisdiction § 3950.1 (4th ed.2013). According to our case law and the Supreme Court, the time limitation at issue in this case is both mandatory and jurisdictional. United States v. Barrera, 347 Fed.Appx. 51, 52 (5th Cir.2009) (per curiam) (unpublished) (“A timely notice of appeal in a civil case is ‘mandatory and jurisdictional.’ ” (quoting Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (emphasis added))). Important to the Supreme Court decision in Bowles was the fact that the time limitation at issue was statutory, enacted by Congress. Bowles, 551 U.S. at 209-13, 127 S.Ct. 2360; see also 28 U.S.C. § 2107. Because this is a jurisdictional issue, it cannot be waived or forfeited. Bowles, 551 U.S. at 213, 127 S.Ct. 2360. Additionally, no equitable exception can overcome this jurisdictional defect. Id. at 214, 127 S.Ct. 2360 (“Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.”); see also Barrera, 347 Fed.Appx. at 52; Perez, 745 F.3d at 179-80. In this case, Brennan voluntarily dismissed his appeal, placing himself in the same position as someone who had never filed an appeal. See Williams, 553 F.2d at 422. Brennan moved this court to reinstate his appeal five months after the judgment and two months after dismissing his appeal — well outside of the time limit set by Fed. R.App. P. 4(a)(1)(A) for civil appeals. See Fed. R.App. P. 4(a) (providing that a notice of appeal in most civil case must be filed within 30 days of the entry of judgment and allowing the district court to extend this time or reopen the time for appeal in certain circumstances). Therefore, his motion to reinstate was ineffective and there is no operative timely filed notice of appeal. See Barrow, 977 F.2d at 1103 (“A motion" }, { "docid": "2843168", "title": "", "text": "entry of the order disposing of the last such remaining motion” filed under Rule 59). The order disposing of Brown’s motion was entered on June 7, 2011. Thus, Brown had sixty days from that date, specifically until Monday, August 8, 2011, to file his notice of appeal. See Fed. R.App. P. 4(a)(1)(B) (giving sixty days after entry of the judgment or order appealed to file a notice of appeal when the United States is a party); see also Fed. R.App. P. 26(a)(1) (explaining how to compute time under the Federal Rules of Appellate Procedure). On August 3, 2011, within the sixty-day time frame, Brown filed a motion seeking an extension of time to file a notice of appeal. A litigant seeking an extension of time for filing an appeal must file the extension motion no later than thirty days after expiration of the applicable period for noticing an appeal. Fed. R.App. P. 4(a)(5)(A). Because Brown’s extension motion was filed before the sixty-day period ended, his motion seeking an extension of time to file a notice of appeal was timely. See id. A district court may grant an extension of time for filing a notice of appeal on a showing of good cause or excusable neglect, but the extension is limited to no later than thirty days after expiration of the applicable appeal period or fourteen days after the date the court’s extension order is entered, whichever is later. Fed. R.App. P. 4(a)(5)(C). Here, the district court granted Brown an extension to file his notice of appeal until September 20, 2011, more than the thirty days allowed under Federal Rule of Appellate Procedure 4(a)(5)(C). Although this date was more than thirty days after the expiration of Brown’s sixty-day appeal period, it was within fourteen days from September 8, 2011, the date the court’s extension order was granted. Thus, the court granted Brown a permissible extension period to file his notice of appeal. Brown filed his notice of appeal on September 12, 2011. Because Brown filed his notice of appeal prior to the September 20, 2011 deadline, his notice of appeal was" }, { "docid": "19948144", "title": "", "text": "its approval of the amended bankruptcy plan. The BAP affirmed, finding that, by its terms, the amended plan dealt only with debt for late mortgage payments incurred before filing for bankruptcy, while the stipulation plainly covered only debt for late mortgage payments incurred after filing for bankruptcy. Accordingly, the amended plan had no effect on the rights and obligations set forth in the stipulation, and the mortgage-holder was within its rights to proceed as it did. On appeal, the Tau-moepeaus ask us to revisit this decision and to find that the amended plan in fact subsumed post-petition debt and effectively nullified the stipulation and any orders pursuant to it. * * * As a threshold matter, we must determine whether the Taumoepeaus timely filed their notice of appeal. The timeliness of a notice of appeal is governed by the Federal Rules of Appellate Procedure, which apply to appeals from the BAP just as they do to other appeals taken to this court. In particular, Rule 4(a) specifies that the notice of appeal in civil matters must be filed within 30 days after the judgment or order appealed from is entered; this requirement is “mandatory and jurisdictional.” Bowles v. Russell, — U.S. -, 127 S.Ct. 2360, 2362, 168 L.Ed.2d 96 (2007); see also 28 U.S.C. § 2107(a) (providing the statutory basis for the 30-day time period set forth in Rule 4(a)(1)). In the case before us, the BAP issued an “Order and Judgment” on August 29, 2006, and the Taumoepeaus filed their notice of appeal with the district court on September 28, 2006. All of this would seemingly make this appeal timely, as the notice of appeal was filed within the 30-day window. The difficulty is that the parties before us now acknowledge that the notice of appeal in this situation should have been filed not with the district court, but with the clerk of the BAP. See Fed. R.App. P. 4(a)(1)(A) (requiring that notice of appeal be filed with the district clerk within 30 days); id. 6(b)(1)(C) (instructing that, when the appeal is from a bankruptcy appellate panel, the term" }, { "docid": "22304156", "title": "", "text": "entered its April 3, 2006 judgment, Mr. Watkins filed a notice of appeal. The district court denied both his motion to proceed on appeal IFP and his request for a COA. II. DISCUSSION Mr. Watkins’s application for a COA seeking to appeal the district court’s April 3, 2006 order denying his habeas petition is untimely and must be dismissed for lack of jurisdiction. We acquire jurisdiction only on the filing of a timely notice of appeal. See Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir.2006); Bowles v. Russell, — U.S. -, 127 S.Ct. 2360, 2363, 168 L.Ed.2d 96 (2007) (“[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional.”) (citations and internal quotation marks omitted). 28 U.S.C. § 2107(a) — from which Federal Rule of Appellate Procedure 4(a) derives— requires that an appeal be brought in a civil case “within 30 days after the entry of [the] judgment, order or decree.” Here, the record is undisputed that Mr. Watkins filed his notice of appeal on May 21, 2007, more than a year after the district court entered its April 3, 2006 order denying the habeas petition and dismissing the action without prejudice. Our review of the record reveals that Mr. Watkins filed no motion which would toll the running of the statutory thirty-day period. See Feb. R.App. P. 4(a)(4). Thus, his time to appeal the April 3, 2006 order expired on May 3, 2006. Because he failed to file a notice of appeal or to seek a COA before that date, he cannot now appeal the order. The record indicates that Mr. Watkins may not have immediately received notice of the district court’s April 3, 2006 order. Nevertheless, we are not situated to consider this as a ground for excusing his failure to timely file a notice of appeal. As previously explained, timely filing of a civil appeal is jurisdictional; Courts have “no authority to create equitable exceptions to jurisdictional requirements.” Bowles, 127 S.Ct. at 2366. Mr. Watkins also seeks to proceed IFP. To do so, he must comply with the filing requirements and demonstrate" }, { "docid": "22929855", "title": "", "text": "I. This court cannot exercise jurisdiction absent a timely notice of appeal. United States v. Langham, 77 F.3d 1280, 1280 (10th Cir.1996) (“A timely notice of appeal is both mandatory and jurisdictional.”). The timing requirements for filing appeals in the federal courts are set out in Rule 4 of the Federal Rules of Appellate Procedure. “In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after ... the entry of either the judgment or the order being appealed.” Fed. R.App. P. 4(b)(1). If that deadline is missed, Fed. R.App. P. 4(b)(4) permits the district court, upon a proper showing of “excusable neglect or good cause,” to “extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).” In the instant ease, final judgment was entered on February 25, 1998. Since ten days after entry of judgment fell on a Saturday, March 7, the ten-day window of opportunity for a notice of appeal pursuant to Rule 4(b)(1) ended on the following Monday, March 9. See Fed. R.App. P. 26(a)(3). Smith did not file a notice of appeal by that date. On March 27, 1998, Smith filed a pro se “Motion For Out of Time Notice of Appeal” asking for a thirty-day grace period to file his appeal. The district court waited until April 16 to grant Smith’s pro se motion after finding the requisite “excusable neglect.” Smith filed his Notice of Appeal on May 4, 1998. The “time otherwise prescribed” by Rule 4(b), which triggers the beginning of the thirty-day period constraining the district court’s power to extend the appeal time, is the expiration of the original appeal period, which in this case was March 9, 1998. Thus, even though the district court’s order did not state a specific deadline for Smith to file his notice of appeal, Rule 4(b)(4) authorized the district court to grant Smith an extension of time to file his notice of appeal up to April 8, which was thirty" }, { "docid": "2843161", "title": "", "text": "672 F.3d 381, 385 (5th Cir.2012). This Court reviews the denial of a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing for abuse of discretion. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.1992). We grant a request for an evidentiary hearing only when the Appellant has produced “independent indicia of the likely merit” of his allegation. United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006) (citations omitted) (internal quotation marks omitted). III. DISCUSSION A. Does this Court have jurisdiction to hear Brown’s appeal? This Court has a duty to examine the basis of its jurisdiction, sua sponte, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). A timely notice of appeal is a jurisdictional requirement in a civil case. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); United States v. Hayes, 532 F.3d 349, 352 (5th Cir.2008) (observing that a § 2255 proceeding is civil in nature). Federal Rule of Appellate Procedure 4(a)(1)(B) provides that a notice of appeal in a civil case where the Government is a party must be filed within sixty days of the entry of judgment. Here, Brown filed his notice of appeal on September 12, 2011, seventeen months after he received notice of the district court’s judgment. Certain postjudgment motions, however, may suspend the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4)(A) (listing postjudgment motions and stating that the time to file an appeal runs from the date of entry of the order disposing of such motions). Thus, we must first determine how to classify Brown’s postjudgment motion: as a motion filed pursuant to Federal Rule of Civil Procedure 59(e) or an unauthorized, successive petition under § 2255. We can then assess whether the postjudgment motion enlarged the time to file Brown’s notice of appeal and, therefore, his notice of appeal was timely. 1. Is Brown’s motion properly classified as a Rule 59(e) motion or an unauthorized, successive petition under § 2255? Brown filed his motion to reconsider on April 20, 2010, twenty-five days after the district" }, { "docid": "19948145", "title": "", "text": "must be filed within 30 days after the judgment or order appealed from is entered; this requirement is “mandatory and jurisdictional.” Bowles v. Russell, — U.S. -, 127 S.Ct. 2360, 2362, 168 L.Ed.2d 96 (2007); see also 28 U.S.C. § 2107(a) (providing the statutory basis for the 30-day time period set forth in Rule 4(a)(1)). In the case before us, the BAP issued an “Order and Judgment” on August 29, 2006, and the Taumoepeaus filed their notice of appeal with the district court on September 28, 2006. All of this would seemingly make this appeal timely, as the notice of appeal was filed within the 30-day window. The difficulty is that the parties before us now acknowledge that the notice of appeal in this situation should have been filed not with the district court, but with the clerk of the BAP. See Fed. R.App. P. 4(a)(1)(A) (requiring that notice of appeal be filed with the district clerk within 30 days); id. 6(b)(1)(C) (instructing that, when the appeal is from a bankruptcy appellate panel, the term “district court” means “appellate panel”). And, while the district court transmitted the notice of appeal to the BAP clerk on October 2, 2006, this was four days after the normal 30-day deadline for timely filing. Thus, unless by operation of statute or rule either the Taumoe-peaus had more than thirty days to file their notice of appeal with the BAP clerk or the notice can be deemed filed on the date received by the district court, it was untimely, rendering us without jurisdiction to consider their appeal. As it happens, we believe the first possibility pertains here. While Rule 4(a) requires that the notice of appeal must be filed within 30 days after the judgment appealed from is entered, it defines the term “entry” by reference to the terms of Rule 58 of the Rules of Civil Procedure. See Fed. R.App. P. 4(a)(7). In turn, and with certain exceptions not applicable here, see Fed.R.Civ.P. 58(a)(1)(A)-(E), when a court’s judgment is not set forth in a separate document, Rule 58 indicates that the judgment is not" }, { "docid": "21465911", "title": "", "text": "notice of appeal. However, it is also undisputed that within the thirty-day time period for filing a notice of appeal specified by Fed. R.App. P. 4(a)(1)(A), IXYS filed with the district court a motion to stay the permanent injunction pending appeal. Our jurisdiction thus depends on whether this document qualifies as a notice of appeal. We conclude that it so qualifies. In Smith v. Barry, the Supreme Court held that “[i]f a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” 502 U.S. 244, 248-49, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). Under Rule 3, an adequate notice must meet three requirements. It must “(A) specify the party or parties taking the appeal ...; (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken.” Fed. R.App. P. 3(c)(1). IXYS’s motion to stay sets forth all three pieces of information: “[ (A) ] [DJefendant IXYS Corporation (‘IXYS’) will, and hereby does, move the Court for an order staying the execution of [ (B) ] its September U, 2006, Final Judgment and enforcement of the permanent injunction entered on the same date pending resolution of IXYS’s appeal to the [(C)] Federal Circuit Court of Appeals.” Mot. to Stay, Int’l Rectifier Corp. v. IXYS Corp., No. 00-CV-6756 (C.D.Cal. Sept. 28, 2006) (Dckt. No. 720) (emphases added). Under Smith, both IR and the district court were therefore on notice of IXYS’s intent to appeal. We thus construe the motion as a notice of appeal. Acting through a motions panel, we tentatively came to the same conclusion in our order of January 18, 2007, denying IXYS’s stay pending appeal. IR responds, however, that since that time, the Supreme Court’s decision in Bowles v. Russell undermines our holding and cabins the leniency required by Smith. In Bowles, the Supreme Court emphasized the jurisdictional nature of notices of appeal and held that the jurisdictional rules lack equitable exceptions. — U.S. —, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). However, Bowles concerned" }, { "docid": "20387316", "title": "", "text": "Civil Procedure 58. On April 24, 2008, Perry and Wilk filed their notice of appeal, which stated they were appealing from “the Judgment and Memorandum Opinion and Order granting Defendant’s motion for summary judgment and denying Plaintiffs’ motion for summary judgment entered on March 24, 2008.” II. ANALYSIS A. Jurisdiction The threshold issue in this case, as in any case, is whether we have jurisdic tion. There is no question that this appeal is from a final decision. See 28 U.S.C. § 1291. Instead, the jurisdictional question here centers around the timeliness of the notice of appeal. With exceptions not relevant in this case, the Federal Rules of Appellate Procedure provide that a notice of appeal in a civil case must be filed with the district court clerk “within 30 days after the judgment or order appealed from is entered.” Fed. R.App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). Here, the district court’s memorandum opinion granting summary judgment to the Pension Fund was entered on March 24, 2008. Because Perry and Wilk did not file their notice of appeal until April 24, 2008, more than thirty days after the entry of the memorandum opinion, the Pension Fund argues the notice was filed too late and that we should therefore dismiss the case. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of a notice of appeal in a civil case is a jurisdictional requirement). But the analysis is not that simple. As we said, Appellate Rule 4(a)(1)(A) measures the time to file a notice of appeal from the date when “the judgment or order appealed from is entered.” The Rules elaborate on entry of a judgment or order in Appellate Rule 4(a)(7), which contains different requirements depending on whether Federal Rule of Civil Procedure 58(a) mandates a separate document. The grant of a motion for summary judgment is not one of the exceptions to the separate document requirement listed in Rule 58(a), so a separate document was required in this case to have a proper Rule 58 judgment. Appellate Rule 4(a)(7)(a)(ii)" }, { "docid": "14891155", "title": "", "text": "rule of practice approach remain good law after Torres). We agree, post-Torres, that the cross-appeal time limit in Federal Rule of Appellate Procedure 4(a)(3) is mandatory and jurisdictional. See also Fed. R.App. P. 26(b) (\"[T]he court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal.\") A notice of appeal must be filed with the clerk of the district court within 80 days after the date of entry of the judgment or order appealed from. Fed. R.App. P. 4(a)(1). A cross-appeal must be filed within 14 days after the date when the first notice of appeal was filed or within the time otherwise prescribed by Appellate Rule 4(a). Fed. R.App. P. 4(a)(3). Under the provisions of Appellate Rule 4(a)(4), the timely fling of certain types of motions, such as motions under Federal Rules of Civil Procedure 50(b) or 59, will extend the time for appeal for all parties, causing the time limits to run from the date of the entry of the order disposing of the last such motion outstanding. The district court entered its judgment on May 24, 1995. But on June 8, 1995, the defendants timely served a motion under Rules 50(b) and 59, thereby extending the time available for filing an appeal. The district court entered its orders deciding this motion on September 28, 1995. The defendants timely filed their notice of appeal with in 30 days, on October 25, 1995. But the Johnsons did not file their cross-appeal until November 13, 1995, 19 days after the defendants filed their notice of appeal. Their filing was five days too late. The plaintiffs' only argument would be to rely on Dubian's October 11, 1995 Additional Motion for Judgment as a Matter of Law or in the Alternative for New Trial or for Amendment of Judgment to make their cross-appeal timely. The district court did not dispose of this motion until November 16, 1995, potentially making the plaintiffs' cross-appeal merely premature. However, Dubian's October 11th motion did no more than raise for a second time the same" }, { "docid": "21421556", "title": "", "text": "not have discretion to reopen the appeal period under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(6). Federal Rule of Civil Procedure (“FRCP”) 77(d) provides that “[ijmmediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b).” Fed.R.Civ.P. 77(d)(1). FRAP 4(a)(6) provides that a district court may reopen the time to file an appeal where “the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry.” Fed. R.App. P. 4(a)(6). Contrary to the majority, I think that the substantive orders were not entered on the docket at the time that AT & T arguably received notice of the orders, and the required notice of the entry was not provided. Under the circumstances, FRAP 4(a)(6) applies. I The majority incorrectly holds that the interpretation of FRAP 4(a)(6) is governed by the regional circuit’s law. The interpretation of FRAP 4(a)(6) is governed by Federal Circuit law since the issue is jurisdictional. State Contracting & Eng’g Corp. v. Florida, 258 F.3d 1329, 1334 (Fed. Cir.2001) (“We have established that in matters of our own jurisdiction, regional circuit law is not binding, and we are obligated to make an independent determination of our jurisdiction.”); see Bowles v. Russell, 551 U.S. 205, 215, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”). However, in relevant respects, regional circuit law and Federal Circuit law are the same. II Under FRAP 4(a), the 30-day time limit for appeal runs from the “entry of the order disposing of the last” judgment as a matter of law (“JMOL”) and/or new trial motion. See Fed. R.App. P. 4(a)(1)(A), 4(a)(4)(A). Here, two JMOL motions and one new trial motion (the “substantive motions”) were filed with the district court as attachments to motions for leave to file under seal (the “sealing motions”). The sealing motions were listed on the docket as numbers 594, 595, and 596." } ]

[ { "docid": "6600747", "title": "", "text": "that the permit violates the CWA. See CWA § 402(d), 33 U.S.C. § 1342(d). Until recently, EPA administered the permitting program in Louisiana through the NPDES. Before issuing a permit, EPA chose to consult with FWS and NMFS to ensure that endangered species would not be threatened by the discharges contemplated in the permit. When EPA announced plans to delegate the permitting program to Louisiana, environmental groups cried foul, pointing out that because the Endangered Species Act (“ESA”) does not apply to the states, nothing would prevent the issuance of permits that might harm endangered species. EPA then devised the following scheme: In exchange for approving Louisiana’s program, EPA directed the Louisiana Department of Environmental Quality (“LDEQ”) to submit proposed permits to FWS and NMFS for review. If the federal agencies agree that the proposed permit does not threaten endangered species, the permit may be issued. But if the federal agencies conclude that the permit does threaten endangered species—and if LDEQ refuses to modify the permit to the agencies’ satisfaction—EPA will exercise its veto power and formally object to the permit. Louisiana consented to this arrangement, and EPA issued its final rule. See Approval of Application by Louisiana To Administer the National Pollutant Discharge Elimination System Program, 61 Fed.Reg. 47,932 (1996). EPA invoked CWA § 304(i), 33 U.S.C. § 1314(i), as authority for attaching this condition to its approval of Louisiana’s program. That section allows EPA to promulgate guidelines “establishing the minimum procedural and other elements” for state permitting programs. The agency also pointed to ESA § 7(a)(2) as justifying its action. That section provides: Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior, Commerce, or Agriculture], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species____ 16 U.S.C. § 1536(a)(2). The spirit of this general mandate is echoed in the statement of congressional purpose underlying the ESA, 16 U.S.C. §" } ]

[ { "docid": "16401242", "title": "", "text": "is subject”). It would be anomalous to review the ultimate agency “determination” while ignoring the reasoning contained in a biological opinion “virtually determinative” of that action. The actual sequence of events in this instance in consistent with the Supreme Court’s observations in Bennett regarding the impact of a biological opinion on an agency’s final decision. The EPA Administrator’s decisionmaking process before approving Arizona’s permitting transfer application included section 7 consultation with FWS and the consideration of the Biological Opinion that resulted from it: The initial dispute between the EPA and FWS regarding the Biological Opinion was “elevated” to the national level, and the final Biological Opinion incorporated the results of consultation between the EPA and FWS. The final EPA decision, in turn, followed the issuance of the Biological Opinion by two days. In its unpublished Response to Comments regarding Arizona’s application to assume permitting authority, released the same day as its final decision, the EPA noted that it had “considered the [biological] opinion of the FWS in proceeding with its approval action.” The EPA went on to approve the Biological Opinion’s conclusions, stating its determination that “FWS appropriately considered all relevant information regarding the effects of the approval action on listed species and designated and proposed critical habitat in arriving at its conclusion, including a broad range of direct and indirect effects of EPA’s approval action,” and declaring that “no information has been submitted which would indicate that the conclusions in FWS’s biological opinion are incorrect.” The EPA, as part of the statutorily mandated consultation process, approved of and relied upon the Biological Opinion when considering Arizona’s transfer application. Evaluating the Opinion’s eviden-tiary and analytic basis is thus integral to reviewing the EPA’s final decision. We conclude that we have jurisdiction to consider the adequacy of both the section 7 consultation and the Biological Opinion that resulted from it while reviewing the EPA’s final decision. B. Standing Petitioners who “allege [1] personal injury [2] fairly traceable to the defendant’s allegedly unlawful conduct and [3] likely to be redressed by the requested relief’ establish Article III standing. Allen v. Wright, 468" }, { "docid": "16401233", "title": "", "text": "habitat, and that the EPA is therefore “required” to consult regarding the transfer decision. 67 Fed.Reg. at 49,917 (final alteration in original); see also id. at 49,919. During the course of the consultation, FWS field office staff in Arizona expressed serious reservations about the proposed transfer. FWS staff noted that section 7 consultations regarding past pollution permits in Arizona had led to mitigating measures to protect species’ critical habitat, and feared that, without such mandatory consultation, Arizona would issue permits without mitigating measures. As a result, there could be harm to certain listed species and habitat, particularly the southwestern willow flycatcher, Pima pineapple cactus, Huachuca water umbel, cactus fer-ruginous pygmy owl, “and perhaps other species.” The staff concluded “that the transfer of this program from EPA to the State causes the loss of protections to species resulting from the section 7 process, and the impact of this loss must be taken into account in the effects analysis in the biological opinion.” In response, EPA staff opined that the EPA lacked the legal authority to base its transfer decision on these concerns, because the agency does “not have the legal authority to regulate the non-water-quality-related impacts associated with State NPDES-permitted projects that are of concern to FWS, including the authority to object to such permits based on non-water quality related impacts to listed species.” To resolve this disagreement, staff of the two agencies developed an “Inter-agency Elevation Document,” summarizing their respective opinions. Pursuant to the Memorandum of Agreement, this document transferred authority over the Biological Opinion to the Director of FWS, the Director of the National Marine Fisheries Service, and the Deputy Assistant Administrator of Water at the EPA. See 66 Fed. Reg. 11,202, 11,209 (Feb. 22, 2001). After the consultation at the national level between the EPA and FWS, the Field Supervisor of the Arizona Ecological Services Field Office of the FWS issued a Biological Opinion recommending approval of the transfer of permitting authority to Arizona. Noting the loss of section 7 consultation, the Biological Opinion recognized that, after the transfer, no federal agency would have the legal authority to" }, { "docid": "16401231", "title": "", "text": "occur.” Id. By its terms, section 7(a)(2) applies only to “federal agencies],” not to state governmental bodies. Accordingly, the EPA’s pollution permitting decisions are subject to section 7(a)(2), but state pollution permitting decisions are not. Noting that the “EPA now consults with the [FWS and National Marine Fisheries Service] under section 7 of the [Endangered Species Act] on ... approval of State National Pollutant Discharge Elimination (NPDES) permitting programs” but recognizing that after transfer, section 7 will not apply to the state’s permitting decisions, the EPA signed a Memorandum of Agreement with the FWS governing the two agencies’ involvement with transferred pollution permitting programs. See 66 Fed.Reg. 11,202, 11,202, 11,207 (Feb. 22, 2001). Asserting that the “EPA’s oversight includes consideration of the impact of permitted discharges on waters and species that depend on those waters,” id. at 11,215, the Memorandum lists several procedures that the EPA and FWS will establish to ensure that they communicate federal endangered species concerns to state water pollution permitting agencies. Id. at 11,216. The Memorandum is not, however, binding on states. Id. at 11,206 (“[T]he MOA ... does not impose any requirements on States.”). Rather, the EPA will “encourage the State ... to facilitate the involvement of permittees” in the described processes. Id. at 11,216 (emphasis added). C. The EPA’s approval of Arizona’s pollution permitting transfer application The State of Arizona (Arizona) applied on January 14, 2002 for transfer of pollution permitting authority regarding Arizona waterways (except those on Indian land). 67 Fed.Reg. 49,916, 49,917 (Aug. 1, 2002). Under that proposal, the Arizona Department of Environmental Quality (ADEQ) was to be responsible for issuing water pollution permits. The EPA’s regional office in San Francisco determined that the transfer could affect listed species in Arizona and so initiated formal section 7 consultation with FWS. Announcing this decision, the EPA stated that “[s]ection 7(a)(2) of the [Endangered Species Act] places a statutory requirement (separate and distinct from [33 U.S.C. § 1342(b) ]) for EPA to ‘insure that any action authorized, funded or carried out[by EPA]’ ” is unlikely to jeopardize listed species or adversely modify their critical" }, { "docid": "22398680", "title": "", "text": "States District Court for the District of Arizona, alleging, among other things, that the biological opinion issued by the FWS in support of the proposed transfer did not comply with the ESA’s standards. The District Court severed that claim and transferred it to the Court of Appeals for the Ninth Circuit, which consolidated the case with the suit challenging the EPA transfer. See 420 F. 3d 946 (2005). A divided panel of the Ninth Circuit held that the EPA’s approval of the transfer was arbitrary and capricious because the EPA “relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations.” Id., at 959. The court concluded that the EPA “fail[ed] to understand its own authority under section 7(a)(2) to act on behalf of listed species and their habitat,” id., at 977, because “the two propositions that underlie the EPA’s action — that (1) it must, under the [ESA], consult concerning transfers of CWA permitting authority, but (2) it is not permitted, as a matter of law, to take into account the impact on listed species in making the transfer decision — cannot both be true,” id., at 961. The court therefore concluded that it was required to “remand to the agency for a plausible explanation of its decision, based on a single, coherent interpretation of the statute.” Id., at 962. The panel majority, however, did not follow this course of action. Rather, the panel went on to review the EPA's substantive construction of the statutes at issue and held that the ESA granted the EPA both the power and the duty to determine whether its transfer decision would jeopardize threatened or endangered species. The panel did not dispute that Arizona had met the nine criteria set forth in § 402(b) of the CWA, but the panel nevertheless concluded that § 7(a)(2) of the ESA provided an “affirmative grant of authority to attend to [the] protection of listed species,” id., at 965, in effect adding a tenth criterion to those specified in § 402(b). The panel dismissed the argument that the EPA’s approval of the transfer application" }, { "docid": "16401254", "title": "", "text": "mandating formal consultation under section 7”); and when announcing the approval of Arizona’s application. See 67 Fed.Reg. 79,629, 79,630 (Dec. 20, 2002) (noting that section 7(a)(2) generally “requires” consultation and that the EPA consulted with FWS “under section 7(a)(2)”). Also, before deciding that consultation was necessary, the EPA first determined that transferring pollution permitting authority to Arizona “may affect” listed species and their critical habitat. See 50 C.F.R. § 402.14(a)(requiring consultation when an agency determines its action “may affect” listed species or critical habitat). The EPA, in its unpublished biological evaluation, made this determination in recognition that in the absence of section 7 consultation on each permitting decision, “there will be a reduction in the number of mechanisms available to the [FWS] to protect Federally-listed species and designated critical habitat in Arizona.” Despite the lucidity and consistency of its position on the consultation point in the administrative proceedings, in litigation the EPA’s lawyers have taken varying stances on the same issue. Before the Fifth Circuit, the EPA “suggest[ed]” that section 7 compelled consultation regarding pollution permitting transfers and, when necessary to protect species, allowed conditioning such transfers on formal agreements requiring states to follow section 7 procedures when issuing permits. Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 297 (5th Cir.1998). The Fifth Circuit rejected the latter position and did not address the former. Id. at 298 & n. 6. The EPA’s brief in this case states that American Forest “supports a finding that EPA lacks” authority to protect endangered species when considering pollution permitting approvals. The same brief, however, maintains that we need not decide the question because the agency did not rely on this position in its decision in this case. At oral argument, the EPA declined to take a position as to whether it has an obligation under section 7(a)(2) to consult with FWS with regard to permitting transfer decisions — even though, during the decisionmaking process, the agency unequivocally stated several times that it does have such an obligation. The EPA’s post-decision equivocation cannot have any impact on our consideration of the validity of" }, { "docid": "16401305", "title": "", "text": "agency to act in compliance with its statutory obligations. In certain instances, however, “when equity demands, the [challenged action] can be left in place while the agency follows the necessary procedures.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995). We have carefully considered whether equitable considerations warrant allowing Arizona to maintain its authority over pollution permitting decisions while the EPA “follows the necessary procedures,” beginning with consultations with the FWS based on legal understandings consistent with this opinion. Arizona has undoubtedly expended significant funds to obtain and implement pollution permitting authority and granted a significant number of permits pursuant to this authority. We cannot reverse the expenditure of those funds nor the issuance of those permits. We further recognize the administrative difficulties in transferring a program like pollution permitting from Arizona back to the EPA and very possibly back to Arizona again. Based on the desire of Arizona to keep its pollution permitting authority and the record of other states obtaining and maintaining their own pollution permitting authority, even after full consultation regarding the transfer’s effect on endangered and threatened species, see supra note 3, it seems likely that Arizona will again apply for pollution permitting authority. Finally, we note that all of the actors in this case — Arizona, the EPA, and FWS — operated in a somewhat murky legal environment. Faced with two circuit court cases suggesting that the EPA lacked authority to make pollution permitting transfer decisions based on Endangered Species Act concerns, “the extent of doubt whether the agency chose correctly” was not insignificant. Sugar Cane Growers Coop. v. Venenan, 289 F.3d 89, 98 (D.C.Cir.2002). Other factors, however, weigh heavily in favor of vacating the EPA’s approval of Arizona’s transfer application. As noted above, Arizona annually issues tens of thousands of pollution permits pursuant to the EPA’s action. See supra note 22. We have concluded that, absent section 7 coverage, we have no strong assurances that these permits will not allow development projects that are likely to jeopardize listed species or adversely modify their habitat. The purpose of the Endangered Species Act" }, { "docid": "16401228", "title": "", "text": "Fed.Reg. 79,629 (Dec. 30, 2002) (announcing approval of Arizona’s pollution permitting authority); 65 Fed.Reg. 50,528, 50,529 (Aug. 18, 2000) (listing then-approved states). Once the EPA transfers a permitting program to a state government, the EPA Administrator maintains an oversight role to assure that the state follows Clean Water Act standards. 33 U.S.C. § 1342(c)(2). If the Administrator determines that the state is not following those standards, the Administrator must demand corrective action. If the state does not take such action, the Administrator must withdraw approval of the state program. § 1342(c)(3). B. The Endangered Species Act In 1973, one year after the enactment of the Clean Water Act, Congress passed the Endangered Species Act, “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The present case focuses on section 7 of the Endangered Species Act, 16 U.S.C. § 1536. Section 7(a)(2) imposes substantive and procedural requirements on “each Federal agency” with regard to “any action authorized, funded, or carried out by such agency.” 16 U.S.C. § 1536(a)(2). Each agency must “insure” that such actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or ad verse modification of [critical] habitat of such species.” Id. Agencies must use the “best scientific and commercial data available” to make such decisions, and must do so “in consultation with and with the assistance of the Secretary [of the Interior].” Id. Endangered Species Act regulations describe the consultation and action requirements imposed on agencies. Section 7’s requirements apply “to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03. An agency must determine if a proposed action “may affect” either endangered or threatened species (denominated “listed species,” § 402.02) or those species’ critical habitat, and, if so, must seek formal consultation with the FWS, or, for marine species, the National Marine Fisheries Service. § 402.14(a). During such consultations, the FWS issues a Biological Opinion analyzing whether the" }, { "docid": "16401284", "title": "", "text": "the meaning of the term “insure” in section 7(a)(2), absent from section 7(a)(1). Nor did it notice the difference between affirmative agency attempts to protect listed species (section 7(a)(1)) and a do-no-harm directive pertaining to affirmative agency actions with likely adverse impact on listed species (section 7(a)(2)). Finally, the D.C. Circuit in Platte River did not mention the availability of exemptions from section 7(a)(2) under the 1978 amend ments, or the repeated decision of Congress not to approve proposed amendments that would have limited the reach of section 7(a)(2) so as to accord with the D.C. Circuit’s reading of the unamended statute. For all these reasons, we do not find Platte River’s cursory consideration of the question persuasive. The Fifth Circuit relied on Platte River to hold that section 7(a)(2) does not permit the EPA to require a state to consult with FWS before issuing a water pollution permit. Am. Forest & Paper Ass’n, 137 F.3d at 294, 298-99. \"While we do not pass on the precise question decided in American Forest, we do note that, aside from the deficiencies of Platte River on which the Fifth Circuit relied, American Forest rested on a fundamental misconception concerning section 7(a)(2): The Fifth Circuit stated that it is “largely beside the point” whether the EPA’s transfer decision is an “agency action,” because “[e]ven if EPA were required to consult with the agencies ... EPA lacks authority to” require states to protect listed species. Id. at 298 n. 6. Section 7(a)(2), however, specifies that if an agency is contemplating a covered “agency action,” it has an obligation both to consult and to “insure” against taking action likely to jeopardize species. The Fifth Circuit’s notion that the consultation and assurance aspects of the statute are independent is simply incorrect. In sum, the better reasoned out-of-circuit authority, as well as our own precedent, supports our conclusion that section 7(a)(2) independently empowers EPA to make pollution permitting transfer decisions on behalf of listed species and their habitat when undertaking covered actions. 5. Summary We hold that approving Arizona’s pollution permitting transfer application was an agency action" }, { "docid": "16401252", "title": "", "text": "and capricious, as the Biological Opinion is itself invalid. See Res. Ltd., 35 F.3d at 1304 (holding that an action agency may not arbitrarily and capriciously rely on a flawed biological opinion); Pyramid Lake Paiute Tribe v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1415 (9th Cir.1990) (same). An agency can satisfy the arbitrary and capricious standard of review, however, even if it relies on an “admittedly weak” Biological Opinion, if there is no “information the Service did not take into account which challenges the [biological] opinion’s conclusions.” Id. at 1415 (cited in Res. Ltd., 35 F.3d at 1304). The upshot is that we must consider whether the EPA, through the Biological Opinion or otherwise* considered all the relevant Endangered Species Act factors and offered an explanation for its decision that is both “plausible” and internally coherent. Applying this test, we first examine the consistency of the EPA’s reasoning. Next, we examine the Biological Opinion, including its legal conclusion regarding the effects of the transfer decision on listed species and their habitat. We then review the other information relied on by the EPA. B. Coherent reasoning? As an initial matter, the EPA’s approval of Arizona’s transfer application cannot survive arbitrary and capricious review because the EPA relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations. Its reasoning was therefore “internally inconsistent and inadequately explained.” Gen. Chem. Corp., 817 F.2d at 857. The EPA definitively stated several times during the decisionmaking process, including when announcing its final decision, that section 7 requires consultation regarding the effect of a permitting transfer on listed species. The agency so stated when announcing its Memorandum of Agreement with the FWS, see 66 Fed.Reg. 11,202, 11,206 (Feb. 22, 2001); when announcing that it had initiated section 7 consultation regarding Arizona’s application because, pursuant to 50 C.F.R. § 402.14(a), approving that application “may affect” listed species, see 67 Fed. Reg. 49,916, 49,917, 49,919 (Aug. 1, 2002); when responding, in an unpublished document, to comments regarding Arizona’s application (noting that “[t]here is no doubt” that the pollution permitting transfer “is an action" }, { "docid": "16401285", "title": "", "text": "that, aside from the deficiencies of Platte River on which the Fifth Circuit relied, American Forest rested on a fundamental misconception concerning section 7(a)(2): The Fifth Circuit stated that it is “largely beside the point” whether the EPA’s transfer decision is an “agency action,” because “[e]ven if EPA were required to consult with the agencies ... EPA lacks authority to” require states to protect listed species. Id. at 298 n. 6. Section 7(a)(2), however, specifies that if an agency is contemplating a covered “agency action,” it has an obligation both to consult and to “insure” against taking action likely to jeopardize species. The Fifth Circuit’s notion that the consultation and assurance aspects of the statute are independent is simply incorrect. In sum, the better reasoned out-of-circuit authority, as well as our own precedent, supports our conclusion that section 7(a)(2) independently empowers EPA to make pollution permitting transfer decisions on behalf of listed species and their habitat when undertaking covered actions. 5. Summary We hold that approving Arizona’s pollution permitting transfer application was an agency action “authorized” by the EPA, thus triggering both section 7(a)(2)’s consultation requirement and its mandate that agencies not affirmatively take actions that are likely to jeopardize listed species. The EPA may have complied with its obligations under the Clean Water Act, but compliance with a “complementary” statute cannot relieve the EPA of its independent obligations under section 7(a)(2). See Wash. Toxics, 413 F.3d at 1033. Section 7(a)(2) imposes a duty on the EPA to “insure” its transfer decision is not likely to jeopardize protected species or adversely modify their habitat, and this duty exists alongside Clean Water Act provisions as the agency’s “first priority.” Hill, 437 U.S. at 185, 98 S.Ct. 2279. We therefore conclude that, under Public Citizen, the EPA’s transfer decision will cause whatever harm may flow from the loss of section 7 consultation on the many projects subject to a water pollution permit, and that harm constitutes an indirect effect of the transfer. The Biological Opinion, which ignored this effect while recognizing that section 7 consultations concerning pollution permitting permits have saved species’" }, { "docid": "16401290", "title": "", "text": "does not excuse agencies from other section 7 requirements that consultation may trigger. The Home Builders also cite cases relating to portions of development projects that “could exist independently of each other.” Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1116 (9th Cir.2000). Seemingly, the Home Builders argue that, because section 7 does not require consultation or mitigation with regard to a development project truly independent of the one covered by a permit, section 7 also does not cover development projects that are dependent on the permit in question. On the contrary, section 7 covers development projects “interrelated or interdependent with” the discharge permitted by a permit, and therefore covers in many instances the development that will take place if construction-connected storm-water discharge is permitted. Neither the FWS nor the EPA makes any argument that justifies the Biological Opinion’s failure to analyze, in detail, the likely effect of such future development projects fostered by pollution permits on specific species. This failure is especially telling in light of the benefits of section 7 consultation regarding water pollution permits. That consultation, as the Biological Opinion noted, has led various developers to alter them development plans, preserving thousands of acres of listed species’ habitat. For example, such mitigation has “maintain[ed] dispersal and movement corridors” for the pygmy owl. FWS staff had noted that the absence of section 7 consultation could harm specific species, yet the Biological Opinion did not spell out those concerns in any detail. By not considering the transfer’s specific impact on listed species — at least those as to which specific concerns had been expressed — the Biological Opinion “failed to consider an important aspect” of the transfer decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 468 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). 2. Alternatives to section 7 consultation The Biological Opinion notes state and federal endangered species protections that exist without section 7 consultation, including: (1) the Memorandum of Agreement between the EPA and FWS, EPA oversight over ADEQ; (2) the Endangered Species Act’s anti-take provisions; and" }, { "docid": "16401253", "title": "", "text": "review the other information relied on by the EPA. B. Coherent reasoning? As an initial matter, the EPA’s approval of Arizona’s transfer application cannot survive arbitrary and capricious review because the EPA relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations. Its reasoning was therefore “internally inconsistent and inadequately explained.” Gen. Chem. Corp., 817 F.2d at 857. The EPA definitively stated several times during the decisionmaking process, including when announcing its final decision, that section 7 requires consultation regarding the effect of a permitting transfer on listed species. The agency so stated when announcing its Memorandum of Agreement with the FWS, see 66 Fed.Reg. 11,202, 11,206 (Feb. 22, 2001); when announcing that it had initiated section 7 consultation regarding Arizona’s application because, pursuant to 50 C.F.R. § 402.14(a), approving that application “may affect” listed species, see 67 Fed. Reg. 49,916, 49,917, 49,919 (Aug. 1, 2002); when responding, in an unpublished document, to comments regarding Arizona’s application (noting that “[t]here is no doubt” that the pollution permitting transfer “is an action mandating formal consultation under section 7”); and when announcing the approval of Arizona’s application. See 67 Fed.Reg. 79,629, 79,630 (Dec. 20, 2002) (noting that section 7(a)(2) generally “requires” consultation and that the EPA consulted with FWS “under section 7(a)(2)”). Also, before deciding that consultation was necessary, the EPA first determined that transferring pollution permitting authority to Arizona “may affect” listed species and their critical habitat. See 50 C.F.R. § 402.14(a)(requiring consultation when an agency determines its action “may affect” listed species or critical habitat). The EPA, in its unpublished biological evaluation, made this determination in recognition that in the absence of section 7 consultation on each permitting decision, “there will be a reduction in the number of mechanisms available to the [FWS] to protect Federally-listed species and designated critical habitat in Arizona.” Despite the lucidity and consistency of its position on the consultation point in the administrative proceedings, in litigation the EPA’s lawyers have taken varying stances on the same issue. Before the Fifth Circuit, the EPA “suggest[ed]” that section 7 compelled consultation regarding pollution" }, { "docid": "22398679", "title": "", "text": "adequately protect listed species and their habitats following the transfer. Id., at 101-107. The EPA concluded that Arizona had met each of the nine statutory criteria listed in § 402(b) and approved the transfer of permitting authority. In the notice announcing the approval of the transfer, the EPA noted that the issuance of the FWS’ biological opinion had “conclude[d] the consultation process required by ESA section 7(a)(2) and reflects the [FWS’] agreement with EPA that the approval of the State program meets the substantive requirements of the ESA.” Id., at 78. 2 On April 2,2003, respondents filed a petition in the United States Court of Appeals for the Ninth Circuit seeking review of the transfer pursuant to 33 U. S. C. § 1369(b)(1)(D), which allows private parties to seek direct review of the EPA’s determinations regarding state permitting programs in the federal courts of appeals. The court granted petitioner National Association of Home Builders leave to intervene as a respondent in that case. Respondent Defenders of Wildlife also filed a separate action in the United States District Court for the District of Arizona, alleging, among other things, that the biological opinion issued by the FWS in support of the proposed transfer did not comply with the ESA’s standards. The District Court severed that claim and transferred it to the Court of Appeals for the Ninth Circuit, which consolidated the case with the suit challenging the EPA transfer. See 420 F. 3d 946 (2005). A divided panel of the Ninth Circuit held that the EPA’s approval of the transfer was arbitrary and capricious because the EPA “relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations.” Id., at 959. The court concluded that the EPA “fail[ed] to understand its own authority under section 7(a)(2) to act on behalf of listed species and their habitat,” id., at 977, because “the two propositions that underlie the EPA’s action — that (1) it must, under the [ESA], consult concerning transfers of CWA permitting authority, but (2) it is not permitted, as a matter of law, to take into account the" }, { "docid": "16401292", "title": "", "text": "(3) Arizona state law. The EPA relies on these protections as sufficient to assure against jeopardizing listed species. None of these protections, however, are sufficient substitutes for section 7’s consultation and mitigation mandates. a. Memorandum of Agreement The Memorandum of Agreement provides the closest substitute for the provisions of section 7. It cannot, however, replace section 7, because it does not grant the federal government any authority to require Arizona to engage in the kind of consultation and mitigation measures EPA had conducted before the transfer. Under the Memorandum, the EPA will review ADEQ permits and identify those that “may raise issues regarding” listed species. 66 Fed.Reg. 11,202, 11,216 (Feb. 22, 2001). For projects posing a significant threat to listed species, the FWS “will work with the State ... to reduce the detrimental effects stemming from the permit.” Id. The FWS, however, has no statutory authority to mandate that the state revise any problematic permits, nor does the EPA. In contrast, all federal agencies have a duty, in consultation with the FWS, to ensure that their actions are not likely to jeopardize any listed species or their designated habitat. § 1536(a)(2). The Memorandum also provides that the “EPA will use the full extent of its CWA [Clean Water Act] authority to object to a State ... permit where EPA finds ... that a State ... permit is likely to jeopardize” listed species. 66 Fed.Reg. at 11,216. However, the Clean Water Act does not grant the EPA authority to make pollution permitting transfer decisions for the benefit of all endangered species; the EPA has that authority only when one also considers the Endangered Species Act. As a result, Endangered Species Act concerns raised by a permit are cognizable under the Clean Water Act only fortuitously, if at all. Unless the EPA is willing to use the authority granted by section 7 in addition to that accorded by the Clean Water Act, the EPA’s ability to object to permits and thereby conserve listed species will be quite limited. In sum, the Memorandum calls for the EPA and the FWS to discuss listed" }, { "docid": "16401304", "title": "", "text": "understand its own authority under section 7(a)(2) to act on behalf of listed species and their habitat and (2) its failure to discuss the specific effects of its decision on the various listed species present in Arizona. It is possible that some combination of state and federal protections for listed species and state agency cooperation with the federal Memorandum of Agreement might sufficiently replace the benefits of section 7 consultation so that no harm to listed species would be “reasonably certain to occur” as a result of losing section 7 consultation. 50 C.F.R. § 402.02. But the EPA could not so conclude without specifically analyzing each listed species within Arizona and without more certain assurances of voluntary state cooperation from officials at all relevant Arizona agencies, as well as a more careful consideration of the actual protection accorded by other federal and state statutory provisions and the Memorandum of Agreement. IV. Remedy Typically, when an agency violates the Administrative Procedure Act and the Endangered Species Act, we vacate the agency’s action and remand to the agency to act in compliance with its statutory obligations. In certain instances, however, “when equity demands, the [challenged action] can be left in place while the agency follows the necessary procedures.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995). We have carefully considered whether equitable considerations warrant allowing Arizona to maintain its authority over pollution permitting decisions while the EPA “follows the necessary procedures,” beginning with consultations with the FWS based on legal understandings consistent with this opinion. Arizona has undoubtedly expended significant funds to obtain and implement pollution permitting authority and granted a significant number of permits pursuant to this authority. We cannot reverse the expenditure of those funds nor the issuance of those permits. We further recognize the administrative difficulties in transferring a program like pollution permitting from Arizona back to the EPA and very possibly back to Arizona again. Based on the desire of Arizona to keep its pollution permitting authority and the record of other states obtaining and maintaining their own pollution permitting authority, even after full" }, { "docid": "16401264", "title": "", "text": "Accordingly, deciding whether the Biological Opinion followed Endangered Species Act regulations defining “indirect effects” requires us to determine whether the EPA can consider and act upon the loss of section 7 consultation benefits in deciding whether to transfer pollution permitting authority to Arizona. If so, then the EPA’s transfer decision can be a cause of the loss of section 7 consultation benefits; the loss of those benefits should have been included in the Biological Opinion as an indirect effect of the potential transfer decision; and the loss of those benefits should have been considered and acted upon by the EPA. 2. “Insure that any action ... is not likely to jeopardize the continued existence of any [listed] species” Authority over the loss of section 7(a)(2) consultation could be grounded in either the Clean Water Act or the Endangered Species Act. The former option is not presented here, so we focus on whether the obligation in section 7(a)(2) to “insure” against jeopardizing listed species empowers the EPA to make decisions to preserve listed species and their habitat even if the Clean Water Act does not so specify. If so, then the EPA has the authority — indeed, because section 7(a)(2) speaks in mandatory terms, the duty — to deny a pollution permitting transfer application that meets Clean Water Act standards but would jeopardize protected species. The language in section 7(a)(2) providing that each federal agency “shall ... insure that any action authorized, funded or carried out by such agency” will not jeopardize listed species or their critical habitat is addressed to each agency, without exception. Our question is: what does it require each agency to do? The ordinary meaning of “insure” as used in this context requires agencies to take action, as dictionary definitions make clear. To “insure” is “[t]o make (a person) sure (of a thing)” and (“[t]o make certain, to secure, to guarantee (some thing, event, etc.)”). VII THE OXFORD ENGLISH DICTIONARY 1059 (2d ed.1989) (emphasis removed). Unless an agency has the authority to take measures necessary to prevent harm to endangered species, it is impossible for that agency" }, { "docid": "16401235", "title": "", "text": "consult with developers concerning the potential impact on listed species of any pollution permits. Such consultation had lead to measures protecting listed species, including the Pima pineapple cactus, razorback sucker, Gila topminnow, southwestern willow flycatcher, and cactus fer-ruginous pygmy owl. Although Arizona could voluntarily consult with FWS regarding pollution permits, neither the EPA nor FWS could require Arizona to act on behalf of listed species. After recognizing this impact of the transfer of permitting authority, the Biological Opinion concluded that the loss of any conservation benefit is not caused by EPA’s decision to approve the State of Arizona’s program. Rather, the absence of the section 7 process that exists with respect to Federal [Clean Water Act] permits reflects Congress’ decision to grant States the right to administer these programs under state law provided the State’s program meets the requirements of 402(b) of the Clean Water Act. The Biological Opinion goes on to conclude: While reviewing this above referenced approval, the FWS has spent considerable time analyzing direct and indirect effects. In the course of this analysis, our field office staff biologists have expressed concerns that the approval will result in loss of section 7 consultation-related conservation benefits. We have stated our belief that the loss of section 7 conservation benefits is an indirect effect of the authorization. Furthermore, we have stated that this loss of conservation benefits will appreciably reduce the conservation status of the cactus ferruginous pygmyowl and the Pima pineapple cactus. Notwithstanding this, our final opinion is that the loss of section 7-related conservation benefits, which would otherwise be provided by section 7 consultations, is not an indirect effect of the authorization action. In changing from a Federal permitting program to a State permitting program, the permit-related section 7 processes for consultation will no longer apply. Essentially, there will be no substantive change in the permit program, but there will be a reduction in the number of mechanisms available to both of our agencies to protect federally-listed species and critical habitat in Arizona. We believe that the assumption of the program by the State of Arizona will not" }, { "docid": "16401291", "title": "", "text": "7 consultation regarding water pollution permits. That consultation, as the Biological Opinion noted, has led various developers to alter them development plans, preserving thousands of acres of listed species’ habitat. For example, such mitigation has “maintain[ed] dispersal and movement corridors” for the pygmy owl. FWS staff had noted that the absence of section 7 consultation could harm specific species, yet the Biological Opinion did not spell out those concerns in any detail. By not considering the transfer’s specific impact on listed species — at least those as to which specific concerns had been expressed — the Biological Opinion “failed to consider an important aspect” of the transfer decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 468 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). 2. Alternatives to section 7 consultation The Biological Opinion notes state and federal endangered species protections that exist without section 7 consultation, including: (1) the Memorandum of Agreement between the EPA and FWS, EPA oversight over ADEQ; (2) the Endangered Species Act’s anti-take provisions; and (3) Arizona state law. The EPA relies on these protections as sufficient to assure against jeopardizing listed species. None of these protections, however, are sufficient substitutes for section 7’s consultation and mitigation mandates. a. Memorandum of Agreement The Memorandum of Agreement provides the closest substitute for the provisions of section 7. It cannot, however, replace section 7, because it does not grant the federal government any authority to require Arizona to engage in the kind of consultation and mitigation measures EPA had conducted before the transfer. Under the Memorandum, the EPA will review ADEQ permits and identify those that “may raise issues regarding” listed species. 66 Fed.Reg. 11,202, 11,216 (Feb. 22, 2001). For projects posing a significant threat to listed species, the FWS “will work with the State ... to reduce the detrimental effects stemming from the permit.” Id. The FWS, however, has no statutory authority to mandate that the state revise any problematic permits, nor does the EPA. In contrast, all federal agencies have a duty, in consultation with the FWS, to ensure that" }, { "docid": "16401232", "title": "", "text": "states. Id. at 11,206 (“[T]he MOA ... does not impose any requirements on States.”). Rather, the EPA will “encourage the State ... to facilitate the involvement of permittees” in the described processes. Id. at 11,216 (emphasis added). C. The EPA’s approval of Arizona’s pollution permitting transfer application The State of Arizona (Arizona) applied on January 14, 2002 for transfer of pollution permitting authority regarding Arizona waterways (except those on Indian land). 67 Fed.Reg. 49,916, 49,917 (Aug. 1, 2002). Under that proposal, the Arizona Department of Environmental Quality (ADEQ) was to be responsible for issuing water pollution permits. The EPA’s regional office in San Francisco determined that the transfer could affect listed species in Arizona and so initiated formal section 7 consultation with FWS. Announcing this decision, the EPA stated that “[s]ection 7(a)(2) of the [Endangered Species Act] places a statutory requirement (separate and distinct from [33 U.S.C. § 1342(b) ]) for EPA to ‘insure that any action authorized, funded or carried out[by EPA]’ ” is unlikely to jeopardize listed species or adversely modify their critical habitat, and that the EPA is therefore “required” to consult regarding the transfer decision. 67 Fed.Reg. at 49,917 (final alteration in original); see also id. at 49,919. During the course of the consultation, FWS field office staff in Arizona expressed serious reservations about the proposed transfer. FWS staff noted that section 7 consultations regarding past pollution permits in Arizona had led to mitigating measures to protect species’ critical habitat, and feared that, without such mandatory consultation, Arizona would issue permits without mitigating measures. As a result, there could be harm to certain listed species and habitat, particularly the southwestern willow flycatcher, Pima pineapple cactus, Huachuca water umbel, cactus fer-ruginous pygmy owl, “and perhaps other species.” The staff concluded “that the transfer of this program from EPA to the State causes the loss of protections to species resulting from the section 7 process, and the impact of this loss must be taken into account in the effects analysis in the biological opinion.” In response, EPA staff opined that the EPA lacked the legal authority to base" }, { "docid": "16401255", "title": "", "text": "permitting transfers and, when necessary to protect species, allowed conditioning such transfers on formal agreements requiring states to follow section 7 procedures when issuing permits. Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 297 (5th Cir.1998). The Fifth Circuit rejected the latter position and did not address the former. Id. at 298 & n. 6. The EPA’s brief in this case states that American Forest “supports a finding that EPA lacks” authority to protect endangered species when considering pollution permitting approvals. The same brief, however, maintains that we need not decide the question because the agency did not rely on this position in its decision in this case. At oral argument, the EPA declined to take a position as to whether it has an obligation under section 7(a)(2) to consult with FWS with regard to permitting transfer decisions — even though, during the decisionmaking process, the agency unequivocally stated several times that it does have such an obligation. The EPA’s post-decision equivocation cannot have any impact on our consideration of the validity of the transfer decision. We must review the EPA’s actions based on the “grounds ... upon which the record discloses that its action was based.” SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943); see also Gifford Pinchot Task Force v. U.S. FWS, 378 F.3d 1059, 1072 n. 9 (9th Cir.2004). The record shows unequivocally that the EPA based the action under review in this case on its belief that section 7 required consultation. We must judge its reasoning taking that position into account. Doing so, we conclude that the obligation to consult — which, under the regulations, applies only to federal agency actions that “may affect” listed species, 50 C.F.R. § 402.14(a) — and the reasons given in the Biological Opinion for concluding that the transfer decision would not have an indirect effect on endangered species cannot coexist under section 7(a)(2). The Biological Opinion reasoned that there could be no such effect, because (1) the EPA has no authority to disapprove transfer applications because of an impact" } ]

[ { "docid": "22607048", "title": "", "text": "Stafford, 274 N. C. 519, 164 S. E. 2d 371; State v. Paige, 272 N. C. 417, 158 S. E. 2d 522; State v. Weaver, 264 N. C. 681, 142 S. E. 2d 633. In any event, Pearce was given such credit. Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala. App. 450, 192 So. 2d 456; Ex parte Merkes, 43 Ala. App. 640, 198 So. 2d 789. And respondent Rice, upon being re-sentenced, was given no credit at all for the two and one-half years he had already spent in prison. We turn first to the more limited aspect of the question before us — whether the Constitution requires that, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction. I. The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168: “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the" } ]

[ { "docid": "23096103", "title": "", "text": "“While the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise would strip the bargaining process itself of meaning and content.” Fentress, 792 F.2d at 464-65. We hold, therefore, that the district court correctly concluded that Burns’s plea agreement did not bind the Government to forswear future prosecution of the discrete substantive offense of travelling in interstate commerce with intent to facilitate a business enterprise involving distribution of cocaine. Because the agreement may safely be enforced according to its terms, and because no evidence of over-reaching tainted the bargaining process, the fairness concerns rooted in the Fifth Amendment and enunciated in Santobello are not implicated here. B. Burns’s second assignment of error alleges that the district court should have dismissed the interstate travel charge as a violation of the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. As we noted in United States v. Ragins, 840 F.2d 1184 (4th Cir.1988), there are two distinct components to this guarantee: The first provides protections against the imposition of cumulative punishments for the ‘same offen[c]e’ in a single criminal trial; the second against being subjected to successive prosecutions for the “same offen[c]e,” without regard to the actual imposition of punishment. Id. at 1187 (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 2077, 23 L.Ed.2d 656 (1969)). Double jeopardy bars a succeeding prosecution if the proof actually used to establish the first offense would suffice to convict the defendant of the second offense. Id. at 1188; Jordan v. Virginia, 653 F.2d 870, 873-74 (4th Cir.1980). Invoking this guarantee against successive prosecutions, Burns argues that his trial on the interstate travel count is barred by the decision of the Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d" }, { "docid": "20695732", "title": "", "text": "the double jeopardy clause serves three primary purposes. ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Gillespie, 837 F.2d at 630 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). At the time Farber’s double jeopardy attack on the CCE count was raised in the district court, the motion to dismiss the indictment concerned the second aspect of this constitutional guarantee, i.e., the protection against a second prosecution for the same offense after conviction. Since that time, Farber has been subjected to that second prosecution, convicted of engaging in a CCE and sentenced for that crime. Those intervening events, however, have not changed the thrust of his constitutional claim or converted this into a “multiple punishments” case. Cf. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977) (once a defendant’s pretrial motion to dismiss the indictment on double jeopardy grounds has been denied, “[tjhere are simply no further steps that can be taken in the District Court to avoid the trial ”) (emphases added); United States v. Sargent Elec. Co., 785 F.2d 1123, 1128 (3d Cir.) (“The standard of these aspects of double jeopardy is no different pretrial and posttrial.”), cert. denied, — U.S.-, 107 S.Ct. 82, 93 L.Ed.2d 36 (1986). The legal question raised by this appeal, rather, is whether the government could charge Farber with engaging in a CCE after he had pled guilty to the first conspiracy charge against him. If it could not, the proper remedy at this point in time is to reverse his CCE conviction, and not simply to vacate the sentence he received for that conviction. Our analysis of Farber’s double jeopardy challenge to his CCE conviction derives from the Supreme Court’s constitutional analysis of convictions for greater and lesser included offenses. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), is the leading instance where the" }, { "docid": "4225318", "title": "", "text": "and hired new personnel and purchased several airplanes. Defendant approved the hiring of pilots and advised them of procedures and arrangements for flights. Co-conspirators testified that defendant made cash payments and arrangements for each trip and that defendant or David Carr was the head of The Company. There also was testimony that defendant was contacted in the case of an emergency during operations, such as when cocaine was discovered in bales of marijuana being unloaded. Defendant had declared bankruptcy in 1972. As a result of his participation in the smuggling business, his investments in two businesses totalled almost $2 million. Although defendant worked as a hearing aid salesman in Cincinnati in the late 1970s, the Government maintains that he had no legitimate income after 1977. He used loans and assets and foreign corporations to launder his proceeds and to conceal them from the Internal Revenue Service. He arranged with a friend to receive a salary so that he would appear to have legitimate income to report on his tax returns. Ill Appellant contends that his guilty plea to charges of 21 U.S.C. § 963 (conspiracy to import marijuana) and 21 U.S.C. § 846 (conspiracy to possess with intent to distribute over 1,000 pounds of marijuana) precluded the Government from continuing its prosecution for engaging in a continuing criminal enterprise under 21 U.S.C. § 848. Appellant urges that his section 848 conviction is barred by the protections of the double jeopardy clause of the fifth amendment against multiple punishments for the same offense and prosecution for the same offense after a previous conviction. The double jeopardy clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The test for determining whether two offenses are “the same” or are distinguishable and allow for cumulative punishment was established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed." }, { "docid": "3241672", "title": "", "text": "time a court accepts a defendant’s guilty plea to a lesser included offense, and the prosecution has not objected to the defendant’s plea, the Double Jeopardy Clause bars reinstatement of the greater offense.. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V, cl. 2. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969))) (emphasis added). The provision “serves principally as a restraint on courts and prosecutors.” Brown, 432 U.S. at 165, 97 S.Ct. 2221. “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ ” Id. (quoting United States v. Jom, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion)). The Supreme Court has long held that a guilty plea constitutes a conviction. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In Kercheval, the government charged defendant with using the mails to defraud. See id. at 221, 47 S.Ct. 582. Defendant pleaded guilty and the court sentenced him to a term of imprisonment of three years. See id. Upon defendant’s motion the court allowed the defendant to withdraw his guilty plea. See id. at 221-22, 47 S.Ct. 582. At the trial the court permitted the prosecution, over defendant’s objection, to put in evidence a certified copy of the guilty plea. See id. at 222, 47 S.Ct. 582. On appeal the government argued that a guilty plea is similar to a confession, and therefore should be likewise admitted. See id. at 223, 47 S.Ct. 582. The Supreme Court held that a" }, { "docid": "17037987", "title": "", "text": "South Miami, Florida, Bance, Colombia, Dade County, Florida; Ft. Myers, Florida; and Cancún, Mexico. The objective of the conspirators involved with the Tampa indictment was the smuggling of Colombian cocaine and Jamaican marijuana into the United States. The main sources of these drugs were Francisco (Paco) Riveroll and the Ochoa family. The conspiracy in the Tampa indictment and the smuggling ventures involved therein did not depend on the bribery of Bahamian officials since the Bahamas were used only infrequently and the conspirators had made the conscious decision to smuggle cocaine predominately instead of marijuana since it was more profitable and was easier to smuggle. The events of smuggling between February 1982 and August 1983 were carried out by airdropping. Further testimony included defendant’s admission that guns (i.e. Mach 10) were used during the smuggling ventures. He further testified that he had (in rough estimate) grossed about 25 million dollars, which included the successful importation of approximately 150,000 pounds of marijuana and 1100 kilos of cocaine into the United States. II. The Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has set forth succinctly the three separate constitutional protects guaranteed by the Fifth Amendment of the Constitution against double jeopardy. The Court held those three protections to be (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. North Carolina v. Pearce, supra at 717, 89 S.Ct. 2076. See also, Poland v. Arizona, — U.S.-, 106 S.Ct. 1749, — L.Ed.2d-(1986). Where successive prosecutions are at stake, the guarantee serves a “constitutional policy of finality for the defendant’s benefit,” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 at 2225, 53 L.Ed.2d 187 (1977) citing United States v. Jom, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Brown" }, { "docid": "18827925", "title": "", "text": "the more serious offense of willful tax evasion. Relying on Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), defendant argues that retrial on the greater offenses of tax evasion after the jury has acquitted on the lesser included offenses of making false returns would place the defendant twice in jeopardy of being convicted for the “same offense.” Alternatively, defendant argues that retrial on the § 7201 counts is precluded by the doctrine of collateral estoppel. II The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” This constitutional prohibition has been held to provide three separate guarantees: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In general, the Double Jeopardy Clause presents no obstacle to retrial after a mistrial has justifiably been declared because of a jury deadlock. E.g., United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); United States v. Brown, 677 F.2d 26 (6th Cir. 1982). The double jeopardy issue arises here, however, as a consequence of the joinder of four separate counts in the same indictment, and the jury’s acquittal on two of those counts. A. Defendant’s “Same Offense” Argument In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Supreme Court was called upon to decide “whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the ‘same offense’ under the Double Jeopardy Clause” so as to preclude a second prosecution for the" }, { "docid": "23096104", "title": "", "text": "U.S. Const, amend. V. As we noted in United States v. Ragins, 840 F.2d 1184 (4th Cir.1988), there are two distinct components to this guarantee: The first provides protections against the imposition of cumulative punishments for the ‘same offen[c]e’ in a single criminal trial; the second against being subjected to successive prosecutions for the “same offen[c]e,” without regard to the actual imposition of punishment. Id. at 1187 (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 2077, 23 L.Ed.2d 656 (1969)). Double jeopardy bars a succeeding prosecution if the proof actually used to establish the first offense would suffice to convict the defendant of the second offense. Id. at 1188; Jordan v. Virginia, 653 F.2d 870, 873-74 (4th Cir.1980). Invoking this guarantee against successive prosecutions, Burns argues that his trial on the interstate travel count is barred by the decision of the Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and by our own holdings in Ragins and Jordan, because the travel count “grows out of the same misconduct” as the conspiracy counts of the 1989 indictment. Burns’s arguments ignore the fact that he was not actually “tried” for double jeopardy purposes in the 1989 prosecution. The only trial Burns faced on the charges in the 1989 indictment ended in a hung jury, and a mistrial was declared. Ever since Justice Story delivered the Supreme Court’s opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), it has been settled law that a mistrial declared on account of jury deadlock does not prevent the Government from reindicting and retrying the defendant. Id. at 579-80; see also Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242 (1984) (stating that “settled line of cases” holds that following hung jury with retrial does not constitute double jeopardy). Burns therefore must rely upon the theory that the district court’s dismissal of the conspiracy counts of the" }, { "docid": "12963436", "title": "", "text": "other substantive counts charge Attempting To Manufacture, and they are all alleged to have occurred in the Eastern District of Oklahoma. The court finds the offenses herein are separate and distinct from defendant’s conviction in Missouri, and his double jeopardy argument is without merit. TR. Vol. I, Tab 24, at 9 (emphasis in original). II On appeal, Felix raises only one issue— that he was subjected to double jeopardy in violation of the Fifth Amendment, specifically the guarantee against being twice put on trial for the same offense. He premises this claim of error on the denial of his motion to dismiss based on double jeopardy grounds. For reasons given below, we are convinced that the Double Jeopardy Clause as interpreted recently in Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), requires the reversal of most of Felix’ convictions. The trial judge did not have the benefit of that recent opinion. The Double Jeopardy Clause affords three guarantees: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Moreover, “it has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition.” Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). It is the second protection that Felix relies upon, namely, that he not be forced to undergo successive prosecutions for the same conduct. General double jeopardy analysis earlier focused on the so-called traditional “Block-burger test” which states that: [Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v." }, { "docid": "1975013", "title": "", "text": "The district court rejected each defendant’s challenge by written order. Each defendant then filed an interlocutory appeal challenging the court’s denial of his motion. We affirm the trial court’s disposition of those motions. II. The Double Jeopardy Clause states: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The double jeopardy guarantee “has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after -conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). To claim benefit of the guarantee, “a defendant must show that the two offenses charged are in law and fact the same offense.” United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). Our disposition of the double jeopardy challenges here is governed by the Supreme Court’s opinion in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In Garrett, the Supreme Court considered a defendant’s claim that his prosecution for CCE in the Northern District of Florida, after an earlier guilty plea in the Western District of Washington to one of the alleged CCE predicates (marijuana smuggling), constituted double jeopardy. The Supreme Court analyzed the double jeopardy claim in two steps. First, the Court inquired whether Congress intended CCE to be a separate offense that may be prosecuted separately from its predicates and, having concluded that it did,, next considered whether the successive prosecutions of the predicate and of the CCE offenses were constitutional under the Double Jeopardy Clause and held that they were. We undertake the same analysis, and reach the same conclusions, here. The Supreme Court’s decision in Garrett conclusively established that Congress intended CCE to be a separate offense from its predicate acts based on the language and history of the CCE statute. See 471 U.S. at 778-86, 105 S.Ct. at 2411-15." }, { "docid": "3127941", "title": "", "text": "the boathouse. Two weeks after the first conviction became final, thé Corps of Engineers issued another Notice of Violation for failure to obtain approval for the water slide platform. The district court conducted a bench trial and . again found Paternostro guilty. The court fined Paternostro $5,000 and sentenced him to five years probation. Paternostro appeals from this second conviction. 1. Double Jeopardy The Double Jeopardy Clause protects against (1) a second prosecution after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Paternostro’s principal argument is that he is being punished multiple times for the single act of building these water slides in violation of his permit. We disagree. His crime as defined by the applicable regulations is the continuing offense of failure to abide by the terms of his Shoreline Use permit by maintaining the non-conforming water slide platform. The Double Jeopardy Clause’s protection against multiple punishments is “limited to assuring that the court does not exceed its legislative authorization.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Our inquiry then is whether the legislature has authorized the multiple punishments. The government relies upon the fact that the governing regulations provide that “[a]ny violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs.” 36 C.F.R. § 327.1(g). Therefore, unlike the Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we need not struggle to discern the intent to impose multiple punishments: the rulemaking body at issue here has explicitly stated its desire to treat each day of the continuing violation as a separate offense. The Brown court, which held that a defendant who was convicted of joy riding could not be retried for auto theft, stated: that it “would have a different case" }, { "docid": "17038006", "title": "", "text": "in the Indiana indictment the statutory offenses charged are the same. D. THE OBJECTIVES OF THE CONSPIRACIES AND SIMILARITY OF OPERATION Defendant testified that the smuggling ventures involving the overt acts alleged in the Indiana indictment primarily involved the importation of marijuana into the United States from Colombia via the Bahamas. The ports of entry into the United States were Florida and Georgia. Moisés Andrews, a Colombian, was the primary supplier of the marijuana. The defendant described his role in the smuggling ventures with Markowski, Baron, Morrison, and Brady, was to arrange the contacts in Columbia, set up the landing strips in Colombia, help distribute the marijuana in the United States to a smaller degree, and handle the overall coordination of times and places. In the Tampa indictment the objective of the conspiracy was the importation of marijuana into the United States from Jamaica via several routes including Cancún, Mexico, (a site not used in the 1977-1981), and the importation of cocaine into the United States from Colombia via several routes. The primary source of the Jamaican marijuana from Francisco (Paco) Riveroll and the primary source for the cocaine was the Ochoa family. Defendant’s role in his smuggling ventures with Riverolls included arranging the landing strips and drop sites. His role did not involve the distribution in the United States. The defendant admitted that a large part of the smuggling ventures going through the Bahamas in 1977 through 1981 involved the bribing of highly placed Bahamian officials. No such bribery occurred during the smuggling ventures in 1982 through 1983 since the Bahamas were not used as a primary refueling or stopping location. The amount of cocaine involved in the smuggling attempts during 1982 and 1983 was about 1100 kilos. The only importation of cocaine from 1977 through 1981 involved 4 kilos smuggled by one James Case who gave the 4 kilos to the defendant as payment for subleasing an island to use as a refueling location in otherwise separate smuggling venture not involving the defendant. The Tampa case involved the use of airdropping the marijuana or cocaine several times. Defendant" }, { "docid": "18745666", "title": "", "text": "trial judge was allowed to give the sentence that most comported with his original sentencing scheme. Id. at 828. Jefferson petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ, — U.S.-, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985), vacated the second panel opinion, and remanded the case to this court for further consideration in light of one of its recent decisions on § 848 sentencing, Garrett v. United States, — U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Relying on the guidance provided in that opinion, we now conclude that cumulative sentencing for the § 848 conviction and the substantive predicate offenses does not violate the Double Jeopardy Clause and we remand this case to the district court for resentencing consistent with this opinion. II. “The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Of these three protections, only the last is relevant here because Dorothy Jefferson was indicted, prosecuted and convicted for both the § 848 offense and the four predicate § 841(a)(1) offenses in the same proceedings. The question of cumulative sentences for a single course of criminal conduct, imposed at the same proceeding, revolves around the legislature’s intent in creating criminal offenses: are two separate offenses and two separate punishments intended? See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”); Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 (“[T]he role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”). In addressing" }, { "docid": "23612607", "title": "", "text": "which he was acquitted in the earlier trial. The district court denied the motion to dismiss, and Ragins took this interlocutory appeal. II The Double Jeopardy Clause of the fifth amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” There are two distinct components to this constitutional guarantee. The first provides protection against the imposition of cumulative punishments for the “same offense” in a single criminal trial; the second against being subjected to successive prosecutions for the “same offense,” without regard to the actual imposition of punishment. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Ragins argues that the instant indictment violates the second of these guarantees because it subjects him to reprosecution for offenses of which he was acquitted in 1986. The critical question, then, is whether any or all of the offenses charged against him here are the “same offenses” as those charged against him in the earlier indictment. It is important at the outset to recognize that different “same offense” tests apply depending on the particular context in which the double jeopardy plea is asserted. Where the plea is against the imposition of cumulative sentences for multiple convictions obtained at a single criminal trial, double jeopardy’s role is limited to assuring that the sentencing court does not exceed its legislative authorization by imposing more than one punishment for something the legislature has defined as a single crime. Brown, 432 U.S. at 165, 97 S.Ct. at 2225; see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). In this context, the established test for determining whether two offenses are the “same” is that first set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Blockburger test, which is essentially one of legislative intent, focuses on the formal elements of the two crimes, finding them to be different offenses" }, { "docid": "8163402", "title": "", "text": "bases this claim on the fact that the present indictment for conspiracy to violate RICO relies upon overt acts that either formed the basis of the March 1979 conviction, or that were known to the Government when it prosecuted Passaro on the federal drug charges. Although admitting that it is unclear at this point what evidence will be used by the Government in the present prosecution, he asserts that the same evidence will be offered in the RICO prosecution that was offered in the prior drug case. He consequently asks this court either to bar the RICO prosecution or remand his appeal for an evidentiary hearing to determine whether in fact the two prosecutions are for the same conspiracy. Our discussion of Passaro’s claim must begin with an analysis of the standard to be used to determine whether a given prosecution violates the Double Jeopardy Clause. The Supreme Court has concluded that [t]he Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Brown Court further reasoned that where successive prosecutions are at stake, the Double Jeopardy Clause protects the accused from attempts by the Government “to secure additional punishment after a prior conviction and sentence . . Id. at 166, 97 S.Ct. at 2225. The traditional test to be applied in determining whether successive prosecutions are permissible was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This test centers on the" }, { "docid": "9608658", "title": "", "text": "States v. Caporale, 806 F.2d 1487, 1517 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987). We review the district court’s denial of a double jeopardy claim de novo as a question of law. United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir.), cert. denied, 498 U.S. 862, 111 S.Ct. 168, 112 L.Ed.2d 133 (1990). IV.THE LAW The double jeopardy clause of the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The Supreme Court has observed that “[b]ecause it was designed originally to embody the protection of the common-law pleas of former jeopardy, the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (internal citation omitted). Accordingly, “... courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Id. The double jeopardy clause, therefore, prohibits successive prosecutions and multiple punishments. It “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Where successive prosecutions are involved, the guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jom, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). It protects against attempts to secure additional punishment after a prior conviction and sentence. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Separate statutory crimes need not be identical—either in constituent elements or in actual proof—in order to be the same within the meaning of the constitutional prohibition against cumulative punishment for the same crime. Brown, 432 U.S. at 164, 97 S.Ct. at 2224-25. The established test" }, { "docid": "17037986", "title": "", "text": "supervise, manage and organize his airplanes and pilots to pick up the cocaine in Colombia and airdrop it at designated locations to be smuggled into the United States. There were several attempts, both successful and unsuccessful, which involved the smuggling of Colombian cocaine, and Jamaican marijuana, from their respective locations, which involved various agreements, for various smuggling ventures, at various times. Other individuals conspiring with defendant during these smuggling ventures and serving in various capacities from February 1982 through August of 1983 were: Dickey Lynn, Norman Williams, Francisco (Paco) Riveroll, Joe Resch, Ricou DeShaw, Russ Morris, Jimmie Boyd, Fred Jenner, Parker Priest, Walter Moyihan, Richard Kniffen, Wanda Kniffen, Jack Kartee, Kevin Seehan, Buddy Ellis, Claude Denise and Richard Knauer. The vehicles used during the smuggling ventures from February 1982 through August 1983 were: 26 foot Ramoni boat; 30 foot Island Hopper; Westwind, a trawler with secret compartments; several speed boats; Cessna 182; Aztec, N550US; Cessna 206; PBy plane and two new aircraft. The locations used during this time period included: Mongego Bay, Jamaica; Florida Keys; South Miami, Florida, Bance, Colombia, Dade County, Florida; Ft. Myers, Florida; and Cancún, Mexico. The objective of the conspirators involved with the Tampa indictment was the smuggling of Colombian cocaine and Jamaican marijuana into the United States. The main sources of these drugs were Francisco (Paco) Riveroll and the Ochoa family. The conspiracy in the Tampa indictment and the smuggling ventures involved therein did not depend on the bribery of Bahamian officials since the Bahamas were used only infrequently and the conspirators had made the conscious decision to smuggle cocaine predominately instead of marijuana since it was more profitable and was easier to smuggle. The events of smuggling between February 1982 and August 1983 were carried out by airdropping. Further testimony included defendant’s admission that guns (i.e. Mach 10) were used during the smuggling ventures. He further testified that he had (in rough estimate) grossed about 25 million dollars, which included the successful importation of approximately 150,000 pounds of marijuana and 1100 kilos of cocaine into the United States. II. The Supreme Court in North" }, { "docid": "17037988", "title": "", "text": "Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has set forth succinctly the three separate constitutional protects guaranteed by the Fifth Amendment of the Constitution against double jeopardy. The Court held those three protections to be (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. North Carolina v. Pearce, supra at 717, 89 S.Ct. 2076. See also, Poland v. Arizona, — U.S.-, 106 S.Ct. 1749, — L.Ed.2d-(1986). Where successive prosecutions are at stake, the guarantee serves a “constitutional policy of finality for the defendant’s benefit,” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 at 2225, 53 L.Ed.2d 187 (1977) citing United States v. Jom, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Brown v. Ohio, supra 97 S.Ct. at 2225. The Brown Court further stated at 432 U.S. 165, 97 S.Ct. 2225: Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U.S. 332, 339-40, 95 S.Ct. 1013, 1019-1020, 43 L.Ed.2d 232 (1975, the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial, (footnote omitted) The Court in Ashe v. Swenson, supra, citing Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957) reiterated that for whatever else that constitutional guarantee may embrace, (cite omitted), it surely protects a man who has been acquitted from having to “run the gauntlet” a second time. The Double Jeopardy Clause" }, { "docid": "17038007", "title": "", "text": "the Jamaican marijuana from Francisco (Paco) Riveroll and the primary source for the cocaine was the Ochoa family. Defendant’s role in his smuggling ventures with Riverolls included arranging the landing strips and drop sites. His role did not involve the distribution in the United States. The defendant admitted that a large part of the smuggling ventures going through the Bahamas in 1977 through 1981 involved the bribing of highly placed Bahamian officials. No such bribery occurred during the smuggling ventures in 1982 through 1983 since the Bahamas were not used as a primary refueling or stopping location. The amount of cocaine involved in the smuggling attempts during 1982 and 1983 was about 1100 kilos. The only importation of cocaine from 1977 through 1981 involved 4 kilos smuggled by one James Case who gave the 4 kilos to the defendant as payment for subleasing an island to use as a refueling location in otherwise separate smuggling venture not involving the defendant. The Tampa case involved the use of airdropping the marijuana or cocaine several times. Defendant testified to only one incident of airdropping marijuana from 1977-1981, not listed as one of the overt acts in the Indiana indictment, to which the defendant claims was unknown to the government. The defendant further admitted that each and every smuggling venture had different agreements reached by the participants and that different people participated in the various smuggling ventures. He also admitted that the financial arrangements and percentage of profits between himself and each of his partners differed. He further admitted that he had definite endings or falling outs with each of his partners before or at the time he started a new partnership and smuggling ventures resulting in new agreements. DEA Agent Jacobsen also testified that it is common for smugglers or smuggling organizations to come together and agree to do a series of loads and then disband. The objectives of the conspiracies in the two indictments were different, albeit the big objective was to smuggle illegal substances into the United States, the sources of the illegal substances were different, the locations involved in" }, { "docid": "3241671", "title": "", "text": "not pending, when the trial court accepted Morris’s plea. Further, the transcript is quite clear: at no time during the plea allocution did the prosecutor object to the plea. See App. at 13-27. The prosecutor claims to have protested the fact that no written decision (presumably of the felony dismissal) was available — “off the record.” App. at 98. We have no way of assessing the claim. Nothing in the record suggests any disagreement with entry of the plea. See App. at 13-27. The record reflects only what we set forth earlier, viz. the prosecutor understood that the court intended to do away with the felony count and reserved her right to make a sentencing recommendation. See App. at 25. Thus, the record supports a finding that the trial justice accepted Morris’s guilty plea to the misdemeanor with the prosecutor’s approval or at least without objection by the prosecution. C. The Law The Supreme Court has clearly established, for the purpose of 28 U.S.C. § 2254(d), that when no greater offense remains “pending” at the time a court accepts a defendant’s guilty plea to a lesser included offense, and the prosecution has not objected to the defendant’s plea, the Double Jeopardy Clause bars reinstatement of the greater offense.. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V, cl. 2. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969))) (emphasis added). The provision “serves principally as a restraint on courts and prosecutors.” Brown, 432 U.S. at 165, 97 S.Ct. 2221. “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional" }, { "docid": "23333353", "title": "", "text": "349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). See generally Westen & Dru-bel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 106-24. I think by their sharp distinction between statutory interpretation and the force of the double jeopardy clause, my brethren fail to give it even this minimal effect. This is particularly distressing since our very discretion to interpret statutes to permit double punishment is one of the exercises of power the double jeopardy clause seeks to restrain. See Brown v. Ohio, 431 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193 (1977). . The Supreme Court also reads American Tobacco to allow cumulative punishment only of two separate conspiracies. In Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 2184, n. 33, 57 L.Ed.2d 43, 60 n. 33 (1978), considering a conviction for the substantive crime of conducting an illegal gambling business, it said, “If two different gambling businesses were alleged and proven, separate convictions and punishments would be proper” (emphasis in original) (citing American Tobacco ), and characterized American Tobacco as “holding Brav-erman inapplicable where two distinct conspiracies [are] alleged.” It continued, “It is not always easy to ascertain whether one or more gambling businesses have been proven under [18 U.S.C.] § 1955. ... No such difficulties are presented here because both sides agree that only a single gambling business existed.” Id. (emphasis supplied). . “The Court has held today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.\" North Carolina v. Pearce, 395 U.S. 711, 717 & n. 11, 89 S.Ct. 2072, 2076 & n. 11, 23 L.Ed.2d 656, 664 (1969) (emphasis supplied, footnotes omitted) (citing Ex parte Lange, 18 Wall. 163, 21" } ]

[ { "docid": "16563429", "title": "", "text": "susceptible of an interpretation that covers the asserted dispute.” The district court held that the arbitration agreement covered only disputes involving the interpretation and performance of the contract but not challenges to the validity of subsequent contract modifications. Parsons-Gilbane appealed the district court’s determination to this Court. In Mar-Len of Louisiana, Inc. v. Parsons-Gilbane, 732 F.2d 444 (5th Cir.1984), a divided panel of this Court dismissed the appeal. This Court concluded that the district court’s denial of Parsons-Gilbane s motion to stay and to compel arbitration was not an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). Subsequent to this Court’s order dismissing Parsons-Gilbane’s appeal, Mar-Len filed a motion requesting the district court to issue an injunction prohibiting any further proceedings in the pending arbitration. On December 12, 1984, the district court issued the requested injunction based on that court’s earlier conclusion that the dispute between Mar-Len and Parsons-Gil-bane is not within the scope of their arbitration agreement. On January 2, 1985, Parsons-Gilbane properly perfected this appeal from the district court’s order granting the injunction. On appeal, ParsonsGilbane argues that the district court improperly stayed the arbitration because of the district court’s erroneous conclusion that the Mar-Len/Parsons-Gilbane dispute was not arbitrable. II. ARBITRABILITY The question of arbitrability is determined on the basis of the existence of an arbitration clause that on its face appears broad enough to encompass the parties’ claims. Commerce Park at DFW Freeport v. Mardian Construction Co., 729 F.2d 334, 338 (5th Cir.1984). A presumption of arbitrability exists requiring that whenever the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. United Steelworkers of America v. Warrior & Gulf Navigational Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). The weight of this presumption is heavy: arbitration should not be denied “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Wick v. Atlantic Marine, Inc., 605 F.2d 166, 168 (5th Cir.1979). The" } ]

[ { "docid": "15884086", "title": "", "text": "and plaintiffs, from New Jersey, entered into a franchise agreement, which included an arbitration clause and involved interstate commerce. As such their agreement is subject to the Federal Arbitration Act (Act). 9 U.S.C. § 1 et seq. (1970). The Act provides that “a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Defendant maintains that the arbitration clause is valid, and plaintiffs are contractually bound to arbitrate this dispute under the Act, and therefore the court should dismiss this action. Plaintiffs maintain that defendant waived its right to arbitrate, and that there are issues involved in this dispute which are not arbitrable, therefore the court should stay arbitration. Additionally, both parties request, in the alternative, that we compel arbitration. Defendant requests that the situs be Arizona, while plaintiffs request that, if we are to compel arbitration, the situs be New Jersey. Waiver The franchise agreement provides that “[ejither party may make a demand for arbitration by filing such demand in writing with the other party within thirty (30) days after the dispute arises.” Defendant terminated the agreement with plaintiffs on June 8, 1989, but did not serve them with a demand for arbitration until September 5, 1989. Plaintiffs maintain that this exceeds the thirty days specified in the agreement, therefore defendant waived its right to arbitrate. “Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Moreover “[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver_” Id. at 24-25, 103 S.Ct. at 941. In the instant case, the problem at hand involves the construction of the contract language regarding waiver." }, { "docid": "22301286", "title": "", "text": "so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Nevertheless, the Supreme Court has announced its “healthy regard for the federal policy favoring arbitration” and has explained that the Federal Arbitration Act, 9 U.S.C.A. §§ 1-16 (West 1970 & Supp.1996), “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). To that end, “the heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989). Thus, we may not deny a party’s request to arbitrate an issue “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Warrior & Gulf Navigation Co., 363 U.S. at 582-83, 80 S.Ct. at 1353. Having established our principles for review, we turn to CTI’s arguments. B. As an initial matter, CTI contends that the district court applied an improper legal standard in concluding that ARC’s three claims against CTI did not fall within the scope of the arbitration clause in the consulting agreement. Relying on the Ninth Circuit’s decision in Mediterranean Enterprises, the district court reasoned that the tortious-in-terference-with-eontraet claim and the in-dueement-of-breach-of-fiduciary-duty claim did not arise out of or relate to the consulting agreement because the claims sounded in tort rather than contract and because the resolution of the claims in no way turned upon the interpretation of the terms of the consulting agreement. See Mediterranean Enters., 708 F.2d at 1464 (holding that a tortious interference claim did not fall within the scope" }, { "docid": "16755949", "title": "", "text": "covers the asserted dispute.” Id. All doubts should be resolved in favor of coverage. Id. As the Supreme Court stated in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983): The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. (Emphasis added.) Here, the arbitration clause at issue is found in the parties’ original 1994 Licensing Agreement. The presumption, then, is that Image’s claim that Reynolds is using Image software for which it no longer owns a license is subject to arbitration under that Agreement. Image’s defense to arbitrability is that Reynolds right to use the particular version of Image software at issue is governed by the 1996 Maintenance Agreement, which does not have an arbitration clause. Because the underlying source of Reynolds’ rights to use Image software generally originated in the 1994 Agreement and because the 1996 Agreement expressly acknowledged the 1994 Agreement’s continuing viability after its execution, the presumption, again, is that Image’s claim that Reynolds is using Image software without authorization is subject to arbitration. Under Moses H. Cone, moreover, any doubt that the dispute is not subject to arbitration should be resolved in favor of arbitration. It has been argued that certain disputes founded on statutory rights, by their very nature, involve public policies or interests rendering them “non-arbitrable” as a matter of law. See LDS, Inc. v. Metro Canada Logistics, Inc., 28 F.Supp.2d 1297, 1300 (D.Kan.1998)(claim under Copyright Act)(eiting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)(claim under Age Discrimination in Employment Act); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)(claims arising under the Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (claim under § 10(b)" }, { "docid": "7167648", "title": "", "text": "arbitration under 9 U.S.C. § 3, which provides: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. The Supreme Court has interpreted the provisions of the FAA broadly, holding that “... as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983) (footnote omitted). In construing the language in § 2, that an arbitration term is enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract,” the Supreme Court stated “... a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270 (1967). A challenge to an agreement to arbitrate will center on the issue of fraudulent conduct in the formation of the contract. The type of fraud, whether it is fraud in the inducement or fraud in the factum, and whether that conduct goes to the entire contract or only the arbitration clause, determines whether the Court will order arbitration of the claim. Under the FAA, the arbitration clause is severable from the contract, and all disputes arising under the'contract are subject to arbitration except those that" }, { "docid": "20121733", "title": "", "text": "the arbitration agreement regardless of the state of the law. Accordingly, it is apparent that this is an issue of contract interpretation. It is fundamental that arbitration agreements are creatures of contract law. Pompano-Windy City Partners v. Bear, Stearns, Inc., 698 F.Supp. 504 (S.D.N.Y.1988). Arbitration contract clauses cannot be interpreted in a policy vacuum, however. Both Congress and the courts have expressed a leaning toward arbitration. Congress first put forward its support of arbitration as a means of dispute resolution in the Federal Arbitration Act, 9 U.S.C. § 1, et seq. The Arbitration Act created a “federal policy favoring arbitration,” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), which requires that courts “rigorously enforce agreements to arbitrate.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985). This federal policy in favor of arbitration does not give courts license to compel arbitration where there has been no agreement to arbitrate. Thus, “the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985). Federal policy is not absent from this determination. “As with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Id. The Supreme Court has also directed that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone, supra at 24-25, 103 S.Ct. at 941 (1982). Thus, the Court must read the contractual clause at issue here with an eye toward arbitration. The cases that have dealt with the specific problem now before this Court have come to a variety of results. This Court has itself recently faced the identical problem of contract interpretation" }, { "docid": "10831898", "title": "", "text": "grant a motion to stay a proceeding pending the arbitration of ‘any issue referable to arbitration under an agreement in writing for such arbitration.’ ” Cara’s Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569 (4th Cir.1998) (quoting 9 U.S.C. § 3). “Whether a party has agreed to arbitrate an issue is a matter of contract interpretation: ‘[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir.1996) (quoting United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Nonetheless, the Supreme Court has held that “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, “the heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.” American Recovery, supra (citations omitted). If the arbitration clause at issue is “‘susceptible of an interpretation that covers the asserted dispute,’ ” a party’s motion to compel arbitration must be granted. Porter Hayden Co. v. Century Indem. Co., 136 F.3d 380, 382 (4th Cir.1998) (quoting United Steelworkers of America, supra). Finally, federal law controls the interpretation of arbitration agreements even where, as in this case, a contract includes a choice-of-law provision. Smith Barney, Inc. v. Critical Health Sys. of North Carolina, Inc., 212 F.3d 858, 861 n. 1 (4th Cir.2000). III. FACTUAL BACKGROUND Plaintiff has had a Shell Oil Company (Shell) credit card since 1979. Complaint, filed March 17, 2000, at H 6. He alleges that from January 1999 through the date the complaint was filed, the Defendants failed to timely credit payments made on" }, { "docid": "7564455", "title": "", "text": "that the parties agreed to arbitrate. Although this is fundamentally an issue of contract interpretation — for which state law provides the basic interpretive rules — our inquiry is informed by FAA jurisprudence. In FAA cases, Supreme Court precedents “instruct courts to use a particular hermeneutic principle for interpreting the breadth of the agreement,” viz., the presumption of arbitra-bility. McCarthy, 22 F.3d at 355. This presumption dictates that “as a matter of federal law, any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Accordingly, “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Information Sciences, Inc. v. Leland Stanford Junior University, 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 (1989) (citation omitted). The presumption of arbitrability is a weighty additive to state-law principles of contract construction, but it does not wholly supplant these principles. As with other issues involving the construction of individual employment contracts, in determining whether a contract requires arbitration, “courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). At bottom, arbitration remains “simply a matter of contract between the parties; it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration.” Id. at 943, 115 S.Ct. at 1924. We turn, therefore, to the application of these principles. As the parties agree, Brennan’s claims, though they are expressed as manifold causes of action, all concern the university’s" }, { "docid": "8886239", "title": "", "text": "Carolina, rather than New York, is Regency Home' Fashions’ principal place of business. Thus, diversity jurisdiction is proper. IV. Turning to the merits, Regency contends that the magistrate judge erred by denying its motion to compel arbitration and to stay proceedings pending arbitration. We review de novo the magistrate judge’s conclusions regarding the arbitrability of the disputes between Regency and Long. See United States v. Bankers Ins. Co., 245 F.3d 315, 318-20 (4th Cir. 2001). Although we have previously articulated the governing standard for resolving the arbitrability of disputes, see American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir.1996), the magistrate judge ignored this controlling precedent and instead applied a legal standard that has been rejected by this Circuit. After reviewing the arbitrability of Long’s claims under the proper legal standard, we find that each of Regency’s claims falls within the scope of the arbitration clauses of the 1972 and 1999 Agreements. A. The Federal Arbitration Act applies to contracts “evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract.” 9 U.S.C.A. § 2 (West 1999). The parties do not dispute that the FAA applies to the arbitration clauses contained in the 1972 and 1999 Agreements. The Supreme Court has announced its “healthy regard for the federal policy favoring arbitration” and has explained that the Federal Arbitration Act “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). To that end, “the heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989) (internal quotation marks omitted). Thus," }, { "docid": "18560265", "title": "", "text": "of limitations question, then it also erred. We have said that a court asked to stay arbitration has four tasks: [F]irst, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then determine whether to stay the balance of the proceedings pending arbitration. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987) (citations omitted). Only the scope of the agreement is at issue here, and we review the district court’s determination of the scope of an arbitration agreement de novo. Id. at 846. The arbitration clauses in the three Customer Agreements all read as follows Unless unenforceable due to federal or state law, any controversy arising out of or relating to my account, to transactions with you for me or this authorization or the breach thereof, shall be settled by arbitration in accordance with the rule, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect, and shall be governed by the laws of the State of New York. In determining the scope of this clause, “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The scope of the arbitration clause implicates the intent of the parties, but doubts regarding that intent must also be resolved in favor of arbi-trability. McDonnell Douglas Fin. Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 831 (2d Cir.1988). Again, when the contract contains a “broad” arbitration" }, { "docid": "22301285", "title": "", "text": "each of CTI’s contentions in turn. II. CTI contends that the district court erred in denying its motion to stay proceedings pending arbitration. In contesting the ruling of the district court, CTI argues that the district court incorrectly concluded that the claims ARC asserts did not fall within the scope of the arbitration clause of the consulting agreement. We review de novo the district court’s conclusions regarding the arbitrability of the disputes between ARC and CTI. See Kansas Gas & Elec. Co. v. Westinghouse Elec. Corp., 861 F.2d 420, 422 (4th Cir.1988). After briefly reviewing the governing principles that guide a court in determining whether a dispute is arbitrable, we find that the district court applied the incorrect legal standard in reaching its decision and conclude that each of ARC’s claims falls within the scope of the arbitration clause of the consulting agreement. A. Whether a party has agreed to arbitrate an issue is a matter of contract interpretation: “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Nevertheless, the Supreme Court has announced its “healthy regard for the federal policy favoring arbitration” and has explained that the Federal Arbitration Act, 9 U.S.C.A. §§ 1-16 (West 1970 & Supp.1996), “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). To that end, “the heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989). Thus, we may" }, { "docid": "129026", "title": "", "text": "been committed”). Both the principle that a contract should be construed so as to reconcile apparent inconsistencies and give meaning to all its terms, and the principle that specific language in a contract governs over more general language, dictate that the district court erred and that we reverse. A. The dispute in this case concerns the question of how to construe the arbitration clause of the Subcontract between Harkins and Waldinger in light of that Subcontract’s incorporation of the Principal Contract between Harkins and Tishman. At the outset, it should be noted that the Federal Arbitration Act reflects a strong federal policy favoring arbitration. “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); see also Stateside Machinery Co. v. Alperin, 591 F.2d 234 (3d Cir.1979). The Supreme Court, in Cone, was referring to the arbitration clause of a construction contract. Contrary to the assertion of the majority, therefore, there can be no question that federal policy embodied in the Arbitration Act, as interpreted by the United States Supreme Court, favors the arbitration of commercial as well as labor disputes. However, even absent the dictates of Cone and the congressional policies attending the Arbitration Act, basic principles of contract construction mandate reversal here. The Subcontract between Harkins, the prime contractor, and Waldinger, the subcontractor, was based on a form subcontract provided by Harkins, and modified by three attachments. Paragraph 17 of the form subcontract provides as follows: All disputes, claims or questions arising hereunder shall be subject to arbitration and shall be submitted to arbitration in accordance with the provisions then obtaining of the Standard Form Arbitration Procedure of the A.I.A. A determination thereunder shall be final and binding upon the parties thereto. Pending determination, there shall be no" }, { "docid": "3885676", "title": "", "text": "injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. The district court in the present case concluded that the City had carried the burden of proof with respect to these four factors. The predominant factor in the district court’s decision was its prediction that the City would prevail on the merits. In order to prevail on the merits, however, the City had to show that Blair’s claim was not arbitrable. We find that the claim is arbi-trable, and for this reason, reverse the injunction below. III. Arbitrability Both parties agree that the disputed contract involves interstate commerce and thus falls within the meaning of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. The Act “is a congressional declaration of a liberal federal policy favoring arbitration agreements...” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., — U.S. —, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Whenever the scope of an arbitration clause is in question, the court should construe the clause in favor of arbitration. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). “[T]he courts of appeals have ... consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. . .. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitra-bility.” Moses H. Cone Memorial Hospital, supra, 103 S.Ct. at 941-42. In addition to establishing a strong presumption in favor of arbitration, the Act also limits the role of the court in determining whether an issue is arbitrable. The court’s sole function is to determine whether the claim is referable to arbitration. Once that determination is made, the court may not delve further into the dispute. “The courts ..." }, { "docid": "2937302", "title": "", "text": "within the scope of the clause, a stay pending arbitration of the claims is mandatory, not discretionary. See Acevedo Maldonado v. PPG Industries, Inc., 514 F.2d 614, 616 (1st Cir.1975) (“Section 3 of the [FAA] requires a federal court in which suit has been brought ... to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement.”); McCain Foods Ltd. v. Puerto Rico Supplies, Inc., 766 F.Supp. 58, 60 (D.Puerto Rico, 1991) (“It is well-established that once there is a binding agreement to arbitrate, courts lack discretion and must enforce the agreed-upon arbitration proceeding.”). The Supreme Court has held that when a court is determining whether a. particular claim is subject to arbitration, “any doubts concerning the scope of arbitrable issues' .'.. .should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). See also GKG Caribe, Inc. v. Nokia-Mobira, Inc., 725 F.Supp. 109, 111 (D.Puerto Rico, 1989). Moreover, arbitration should be compelled “unless it may bé said \"with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). That said, “Arbitration has been characterized by the Supreme Court as being a creature of contract. It is the general rule that parties cannot be required to submit disputes to arbitration unless they have agreed to do so.”- Eric James Fuglsang, The Arbitrability of Domestic Antitrust Disputes: Where Does the Law Stand?, 46 DePaul L.Rev. 779, 784 (1997). Parties cannot be forced to arbitrate claims that are not within the scope of the agreement. As stated by the Tenth Circuit in Coors Brewing Company v. Molson Breweries, 51 F.3d 1511, 1514 (10th Cir.1995), any claim that has a “reasonable factual connection to the contract is arbitrable.”" }, { "docid": "13248174", "title": "", "text": "Act, 9 U.S.C. §§ 1 et seq., govern our analysis. This statute expresses the strong federal policy in favor of arbitration. The Supreme Court has spoken generally to the effect that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Constr., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-942, 74 L.Ed.2d 765 (1983). While hortatory statements such as this are helpful in framing our discussion, our conclusion that the arbitrators did not exceed their powers in awarding punitive damages in this case is predicated upon substantially more rigorous analysis. We turn initially to the text of the Ray-theon-Automated arbitration clause, noting two important aspects of the language the parties chose. First, the arbitration clause is neither limited in its scope nor optional in its application; rather, it states unequivocally that “[a]ll disputes” arising from the contract “shall be settled” through arbitration (emphasis added). Second, it explicitly requires arbitration to be conducted under the rules of the AAA. Among these rules, with which one must expect a sophisticated commercial party like Raytheon to be intimately familiar, is Rule 42, which empowers AAA arbitrators to “grant any remedy or relief which is just and equitable and within the terms of the agreement of the parties.” Combining these two observations, the specific question we must answer may be best phrased as whether, when Automated and Raytheon agreed to “settle” through arbitration “all disputes” arising under their contract and to authorize the arbitrator to grant any just and equitable remedy or relief, they agreed to include “within the terms of [their] agreement” the power to award punitive damages. Were we to confine our analysis to the plain language of the arbitration clause, we would have little trouble concluding that a contract clause which bound the parties to “settle” “all disputes” through arbitration conducted according to rules which allow any form of “just and equitable” “remedy of relief”" }, { "docid": "14790649", "title": "", "text": "the parties entered into their agreements, the Wilko v. Swan case and its progeny, which held that predispute arbitration agreements could not be enforced to compel arbitration of 1933 or 1934 Act claims, were still controlling precedent. Taken in context, then, the “except” clause simply states the law as it existed before McMahon. The long-held rule of Wilko and its progeny, however, was eviscerated by the McMahon decision. See Ketchum v. Almahurst Bloodstock IV, 685 F.Supp. 786 (D.Kan.1988), as modified by Reed v. Bear, Stearns & Co., Inc., 698 F.Supp. 835 (1988) (scheduled for publication). Consequently, the court finds that the “except” clause in the parties’ arbitration provision does not exclude from arbitration all federal securities laws claims, but only those federal securities laws which would be excluded from arbitration and thus litigable under current precedent or under applicable securities regulations or rules. Since plaintiff’s 1934 Act claims are arbitrable under the authority of McMahon, they fall outside the exception in the parties’ agreements. Even if the court were to decide that the parties’ agreement to arbitrate was ambiguous, the conclusion would nevertheless be the same: plaintiff’s claims under Count I are arbitrable. As the Supreme Court stated in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983): The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. The Supreme Court has thus given its stamp of approval to the principle that arbitration provisions are to be construed broadly to effectuate the strong federal policy evidenced by the Federal Arbitration Act. See id. Construing the parties’ agreements broadly, the court finds that the parties agreed to arbitrate plaintiff’s 1934 Act claims, and also finds that the proceedings on these claims must be stayed, pending the outcome of arbitration. 9 U.S.C. § 3. IT IS THEREFORE ORDERED that" }, { "docid": "8886240", "title": "", "text": "controversy thereafter arising out of such contract.” 9 U.S.C.A. § 2 (West 1999). The parties do not dispute that the FAA applies to the arbitration clauses contained in the 1972 and 1999 Agreements. The Supreme Court has announced its “healthy regard for the federal policy favoring arbitration” and has explained that the Federal Arbitration Act “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). To that end, “the heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989) (internal quotation marks omitted). Thus, we may not deny a party’s request to arbitrate an issue “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Having established our principles for review, we turn to Regency’s arguments. B. Regency first argues that the magistrate judge erred by failing to apply the proper legal standard to determine the arbitrability of Long’s claims against Regency. In American Recovery, we held that a broadly-worded arbitration clause applies to disputes that do not arise under the governing contract when a “significant relationship” exists between the asserted claims and the contract in which the arbitration clause is contained. See American Recovery, 96 F.3d at 93. The arbitration clauses contained in the 1972 and 1999 Agreements are worded in the same broad manner as the arbitration clause at issue in American Recovery. See id. (holding that an arbitration clause that provided arbitration" }, { "docid": "16755948", "title": "", "text": "the Act or federal law generally. Id. Because the remedy sought by Image includes Reynolds’ profits or statutory damages as provided under the Act, jurisdiction under § 1338(a) is established. B. Legal Standards. The Federal Arbitration Act (FAA), 9 U.S.C. § 1-16, “evinces a strong federal policy in favor of arbitration.” ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir.1995)(citing Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)), cert, denied, 525 U.S. 822, 119 S.Ct. 65, 142 L.Ed.2d 51 (1998). The purpose of the FAA “was to reverse the longstanding judicial hostility to arbitration agreements ... and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). “If a contract contains an arbitration clause, a presumption of arbitrability arises.” ARW at 1462. This presumption may. be overcome only if “it may be said with positive assurance that the arbitration clause is not susceptible of an interpreta tion that covers the asserted dispute.” Id. All doubts should be resolved in favor of coverage. Id. As the Supreme Court stated in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983): The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. (Emphasis added.) Here, the arbitration clause at issue is found in the parties’ original 1994 Licensing Agreement. The presumption, then, is that Image’s claim that Reynolds is using Image software for which it no longer owns a license is subject to arbitration under that Agreement. Image’s defense to arbitrability is that Reynolds right to use the particular version of Image software at issue is governed by the 1996 Maintenance Agreement, which does not have an arbitration clause. Because the underlying source of Reynolds’" }, { "docid": "11084041", "title": "", "text": "including Kramer’s summary judgment motion, pending the outcome of Hammond’s action in South Carolina. Kramer appealed the stay order, but the appellate division affirmed. Kramer then moved for leave to appeal to the New York State Court of Appeals; the court of appeals dismissed the motion on June 30, 1989. Nearly a year and a half later, and after he had finally lost his jurisdictional battle in South Carolina, Kramer, on November 16, 1990, petitioned the district court to compel arbitration. The district court, in a handwritten, one-sentence endorsement, granted this motion on January 22, 1991, stating that there was “an insufficient showing of ‘waiver’ to rebut the policy favoring arbitration.” On February 13, 1991, Hammond filed a notice of appeal, and on March 13, 1991 moved under Fed. R.Civ.P. 60(b) for relief from the judgment. The district court denied this motion for lack of jurisdiction. Hammond appeals from both the judgment and the 60(b) order. He argues that the arbitration clause upon which Kramer relies has been abrogated, and that in any event, Kramer waived his right to arbitrate. He further argues that the tort claims that form the basis for his action are not within the scope of the arbitration clause. We conclude that Kramer waived his right to arbitration by engaging in extensive pre-trial litigation for over four years, and we therefore remand the case to the district court with a direction to dismiss the petition to compel arbitration. Because we reverse on the waiver issue, we need not consider Hammond’s other arguments. DISCUSSION There is, of course, a strong presumption in favor of arbitration. “[A]ny doubts concerning the scope of arbitration issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). In light of this presumption, a waiver of arbitration “ ‘is not to be lightly inferred.’ ” Rush v. Oppenheimer &" }, { "docid": "18560266", "title": "", "text": "breach thereof, shall be settled by arbitration in accordance with the rule, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect, and shall be governed by the laws of the State of New York. In determining the scope of this clause, “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The scope of the arbitration clause implicates the intent of the parties, but doubts regarding that intent must also be resolved in favor of arbi-trability. McDonnell Douglas Fin. Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 831 (2d Cir.1988). Again, when the contract contains a “broad” arbitration clause, as the one at issue here, that purports “to refer all disputes arising out of a contract to arbitration,” the strong presumption in favor of arbitrability applies with even greater force. Id. at 832, (citing AT & T Technologies, 475 U.S. at 650, 106 S.Ct. at 1419). Here the trustee’s allegation that Shearson churned HMK accounts clearly arises out of or relates to the HMK account. The arbitration clause does not limit claims to tort or contract. Rather, given that the arbitration clause in each of the Customer Agreements states that all controversies “arising out of or relating to” the accounts are arbitrable, the churning allegation does “touch matters” covered by these Agreements. Genesco, 815 F.2d at 846; citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 624 n. 13, 105 S.Ct. 3346, 3352 n. 13, 87 L.Ed.2d 444 (1985); Hays & Co., 885 F.2d at 1153-54 (trustee in bankruptcy for corporation who brought churning claim was bound to arbitration by customer agreement with arbitration clause employing language indistinguishable from that in" }, { "docid": "21095100", "title": "", "text": "event. We take these contentions in order. A. The settlement agreement released Zandford from“all ... obligations and liabilities of any kind or nature whatsoever ... which arise out of or are in any manner whatsoever, directly or indirectly related to Zandford’s employment and termination of employment with [Pru-Bache].” Zandford says this released him from any obligation to arbitrate under either the U-4 form or the employment agreement; Pru-Baehe says the obligation under the U4 filing survived and remained binding. We agree with Pru-Bache. We start with the federal policy strongly favoring arbitration, under which “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). When a party seeking to avoid arbitration contends that the clause providing for arbitration has been superseded by some other agreement, “the presumptions favoring arbitrability must be negated expressly or by clear implication.” Nolde Bros., Inc. v. Local No. 358, Bakery and Confectionery Workers Union, 430 U.S. 243, 255, 97 S.Ct. 1067, 1074, 51 L.Ed.2d 300 (1977). Motions to compel arbitration under an arbitration clause should not be denied “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). There are, however, countervailing considerations to be taken into account. Arbitration clauses are contractual terms, and ordinary means of contract interpretation must be applied to determine their applicability to particular disputes. Arbitration may only be judicially compelled when the parties have agreed to it, and then only for" } ]

[ { "docid": "23083414", "title": "", "text": "down for the DQA position as a result of racial or ethnic animus or racially or ethnically discriminatory policies. Id. at *8. Judgment was entered dismissing the action. Shah’s motion for reconsideration was denied, and this appeal followed. II. DISCUSSION On appeal, Shah principally challenges the district court’s dismissals of his Title VII claims. As to the dismissal of Shah’s Title VII claim against OMH, we affirm principally because, as discussed in the district court’s December 1997 Opinion, Shah failed to adduce sufficient evidence to create a genuine issue of fact as to whether the legitimate nondiscriminatory reasons offered by OMH were pretextual. As to the dismissal of Shah’s other claims, except Claims 8 and 9, we affirm substantially for the reasons stated in the district court’s January 1996 Opinion. As to Claims 8 and 9, we vacate and remand for further proceedings for the reasons that follow. A. Claims 8 and 9 for Retaliation A Title VII claimant may bring suit in federal court only if he has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See 42 U.S.C. § 2000e-5(e) and (f); see, e.g., Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.1994); Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir.1993) (“Butts ”). The federal courts generally have no jurisdiction to hear claims not alleged in an employee’s EEOC charge. See, e.g., Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998). This exhaustion requirement is “an essential element of Title VII’s statutory scheme,” Butts, 990 F.2d at 1401, and is designed “to give the administrative agency the opportunity to investigate, mediate, and take remedial action,” Stewart v. United States Immigration & Naturalization Service, 762 F.2d 193, 198 (2d Cir.1985). Nonetheless, claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are “reasonably related” to those that were filed with the agency. See, e.g., Butts, 990 F.2d at 1401-02; Owens v. New York City Housing Authority, 934 F.2d 405, 410-11 (2d Cir.), cert. denied," } ]

[ { "docid": "22931777", "title": "", "text": "employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled. But what does accommodation mean, if the employee does not request specific accommodation? We have held that the ADA contemplates that employers will engage in “an ‘interactive process’ [with their employees and in that way] work together to assess whether an employee’s disability can be reasonably accommodated.” Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.2000). In this case, it was reasonable for the jury to find that Brady was disabled and/or that Appellants perceived him to be disabled. Accordingly, Wal-Mart was obligated to engage in the aforementioned interactive process. Wal-Mart failed to engage in this process, and therefore the district court was correct in declining to grant judgment as a matter of law on the failure to accommodate claim. D. Consent Decree At the time of Brady’s employment and throughout this litigation, Wal-Mart was subject to a nationwide consent decree pursuant to EEOC v. Wal-Mart Stores, Inc., No. S99 CIV 0414, 2001 WL 1904140 (E.D.Cal. Dec.17, 2001). The consent decree required Wal-Mart, inter alia, not to engage in any employment practice that would violate the ADA, to train Wal-Mart employees in ADA compliance, and to formulate accurate job descriptions that are consistent with actual job requirements. Id. The district court allowed Brady to introduce into evidence a redacted version of the consent decree “for the limited" }, { "docid": "3940736", "title": "", "text": "MEMORANDUM OPINION AND ORDER DE MENT, District Judge. This cause is now before the court on twelve motions for summary judgment filed by the defendant, Wal-Mart Stores, Inc. (“Wal-Mart”). The plaintiffs in this consolidated action are either current or former employees of Wal-Mart store # 930 located in Montgomery, Alabama. The plaintiffs allege that Wal-Mart discriminated against them on the basis of race by breaching the terms and conditions of their employment, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Because Wal-Mart’s motions involve similar legal issues and facts, the court will address the motions simultaneously. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court issues the following memorandum opinion. JURISDICTION Based upon 28 U.S.C. §§ 1331,1343 and 42 U.S.C. § 2000e-5(f)(3), the court properly exercises subject matter jurisdiction over this action. The parties do not contest personal jurisdiction or venue. Additionally, under Title VII and the Equal Employment Opportunity Commission’s (“EEOC”) regulations, a plaintiff must satisfy two jurisdictional requirements before filing a complaint in federal court. The court finds that all plaintiffs, except Calandra Cherry and Caroline Glover, discussed infra, (1) timely filed a charge of discrimination with the EEOC and, (2) after receiving right-to-sue letters from the EEOC, timely instituted this action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). SUMMARY JUDGMENT STANDARD On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard: [T]he plain" }, { "docid": "19105507", "title": "", "text": "motion should be granted. BACKGROUND On May 13, 1999, plaintiff filed this action pro se for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112-12117. She alleges that she was denied job accommodations, promotions, lateral placements and transfers because of her religion (Christian) and disability (back problems), and was sexually harassed,' during her employment at the Erie County Department of Social Services (“DSS”). She also claims that her union (CSEA Local 815) failed to process' her grievances against DSS, and failed to assist her with her efforts to obtain promotions, transfers or accommodations (see Item 1). On July 19, 1999, DSS answered the complaint. On August 3, 1999, CSEA Local 815 filed a motion to dismiss the complaint in lieu of an answer, raising the following grounds: 1. Plaintiff has not obtained a “right-to-sue” notice from the Equal Employment Opportunity Commission (“EEOC”), and has not otherwise exhausted administrative procedures, ■ with re'spect to her claims against the union. 2. Plaintiffs claims against the union are time-barred. 3. The complaint fails to state a claim against the union under Title VII or the ADA upon which relief can be granted. Each of these grounds is discussed in turn below: DISCUSSION 1. Exhaustion of Administrative Procedures. In Vital v. Interfaith, Medical Center, 168 F.3d 615 (2d Cir.1999), the Second Circuit recently affirmed a district court’s dismissal of a Title VII claim against the plaintiffs union because the union was not named in the charge that the plaintiff filed with the EEOC, or in the right to sue letter that the EEOC issued to the plaintiff. As explained by the Circuit, a Title VII complainant must first file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court. Id. at 619 (citing 42 U.S.C. § 2000e — 5(f)(1)). The purpose of this requirement is “to notify the charged party of the alleged violation and also [to] bring[ ]" }, { "docid": "4847333", "title": "", "text": "in turn. A. Hostile work environment Defendant first contends that the Court does not have subject matter jurisdiction over Plaintiffs claim of a racially hostile work environment because Plaintiff failed to exhaust his administrative remedies. (Def.’s Reply Mem. in Supp. of Mot. for Summ. J. (“Def.’s Reply”) at 3.) Second, Defendant contends that under Federal Rule of Civil Procedure 8, Plaintiffs complaint fails to give proper notice of a hostile work environment claim. (Id. at 5.) Third, Defendant contends that Plaintiff cannot establish a prima facie hostile work environment claim. (Id. at 6.) Having found that Plaintiff failed to exhaust his administrative remedies with respect to his hostile work environment claim, the Court does not reach Defendant’s additional grounds for summary judgment. In order for a federal court to have subject matter jurisdiction over a Title VII claim, a plaintiff must first unsuccessfully pursue administrative relief. Ang v. Procter & Gamble Co., 932 F.2d 540, 545 (6th Cir.1991) (citation omitted). In the Title VII context, this generally requires a plaintiff to file a charge of discrimination with the EEOC and subsequently receive a notice of right to sue before filing suit. Federal courts do not have subject matter jurisdiction over a plaintiff’s claim if the plaintiff fails to raise a Title VII claim before the EEOC. See id. In the Sixth Circuit, a plaintiffs failure to check a box to include a specific claim of discrimination in an EEOC charge does not preclude the plaintiff from bringing that uncharged claim in a judicial complaint if the facts alleged in the EEOC charge should have caused the EEOC to investigate the claim. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir.2004). In other words, a federal court has jurisdiction over those claims explicitly filed in the EEOC charge and claims that “can reasonably be expected to grow out of that charge.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir.1998); see also Ang, 932 F.2d at 545 (“The judicial complaint must be limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of" }, { "docid": "2077269", "title": "", "text": "alleging Sumser discriminated against her because of her disability in violation of the ADA. A jury found for her and awarded her compensatory damages. DISCUSSION This court reviews de novo “the legal question behind a dismissal for subject matter jurisdiction.” Abeita v. Trans-America Mailings, Inc., 159 F.3d 246, 254 (6th Cir.1998). Sumser contends that the district court lacked jurisdiction because Jones did not administratively exhaust her federal accommodation claim. Jones did not explicitly state in her charge of discrimination filed on February 28, 1994, with the Ohio Civil Rights Commission (“OCRC”), that Sumser failed to accommodate her disability. “Federal courts do not have subject matter jurisdiction of Title VII claims unless the claimant explicitly files the claim in an EEOC charge or the claim can reasonably be expected to grow out of the EEOC charge.” Id. at 254. The regulatory requirement that a claimant’s written charge be “sufficiently precise to identify the parties, and to describe generally the action or practices complained of’ has two purposes. Id. First, the requirement provides the basis for the EEOC’s “attempt to obtain voluntary compliance with the law.” Second, these attempts “notify potential defendants of the nature of plaintiffs claims and provide them the opportunity to settle the claims before the EEOC rather than litigate them.” Id. A complainant need not “attach the correct legal conclusion” to allegations in the charge, “conform to legal technicalities,” or use “the exact wording which might be required in a judicial pleading.” Davis v. Sodexho, 157 F.3d 460, 463 (6th Cir.1998). However, this expanded rule does not maintain “that plaintiffs are excused from filing charges on a particular discrimination claim before suing in federal court.” Id. The claim must grow out of the investigation or the facts alleged in the charge must be sufficiently related to the claim such that those facts would prompt an investigation of the claim. Id. at 464. Her claim did not meet this test. Jones’s February 28, 1994, charge did not explicitly allege that Sumser failed to accommodate her disability. Furthermore, such a claim does not reasonably grow out of the facts and" }, { "docid": "535854", "title": "", "text": "have believed that the settlement agreement would preclude any further actions, they were still obligated to preserve all of their records until the EEOC charge was disposed of. Accordingly, any prejudice attributable to defendants’ failure to preserve records is entirely self-inflicted. See Rozen v. District of Columbia, 702 F.2d at 1204; see also Bernard v. Gulf Oil Co., 596 F.2d at 1257 (“A party cannot assert the defense of laches merely because it has failed to preserve evidence despite knowledge of a pending claim”). In sum, defendants’ claim of prejudice is unconvincing. In their final argument, defendants contend that plaintiff’s “marital status” claim must be dismissed because that claim,was not filed in a timely fashion with the EEOC and because that claim is not reasonably related to plaintiff’s original EEOC charge. Plaintiff responds by contending that the claim was made during the EEOC investigation and is thus properly before the Court. A party must, of course, file a timely charge with the EEOC and obtain a right-to-sue letter as a condition precedent to the filing of a Title VII action. 42 U.S.C. § 2000e-5(a), (b). In defining the scope of the judicial claim, however, the Court may look not only the EEOC charge, but may also take into account the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir.1979) (quoting Smith v. American President Lines, 571 F.2d 102, 107 n. 10 (2d Cir.1978), rev’d on other grounds, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)). See Bradley v. Consolidated Edison Co. of New York, Inc., 657 F.Supp. 197, 202 (S.D.N.Y.1987). Moreover, a court may consider claims that are “reasonably related to the allegations in the complaint filed with the EEOC.” Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir.1980). Our Court of Appeals has recognized that judicial claims “can reasonably be expected to grow out of,” or are “reasonably related to,” the EEOC charge where those judicial claims address the same type of discrimination claim, see" }, { "docid": "2043966", "title": "", "text": "CBA is required to resolve his claims; (3) defendant regarded or perceived him as disabled; (4) defendant failed to engage in the required good faith interactive process of the ADA; and (5) defendant’s “100% healed” policy is a per se violation of the ADA. Analysis I. Exhaustion Of Remedies Defendant argues that plaintiff has not exhausted administrative remedies because (1) he did not file a charge of discrimination with the EEOC; (2) he did not cooperate with EEOC efforts to investigate his intake questionnaire; and (3) his claims of perceived disability discrimination, failure to accommodate, pattern or practice and retaliation fall beyond the scope of his allegations on the intake questionnaire. Plaintiff argues that he is entitled to summary judgment on the issue of exhaustion because his intake questionnaire sets forth sufficient information to constitute a charge under 29 C.F.R. § 1601.12(a) and (b), he cooperated with the EEOC in the investigation and he presented all claims to the EEOC. A. No Charge Filed Before a federal court may exercise jurisdiction over plaintiffs ADA claims, he must first exhaust his EEOC administrative remedies. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir.2005). Defendant argues that because plaintiff never filed a charge of discrimination, he did not exhaust administrative remedies. Defendant also argues that it did not receive notice of plaintiffs claims until it received a copy of the right-to-sue letter and that plaintiffs intake questionnaire therefore cannot be construed as a charge. Defendant contends that the Tenth Circuit has held that an intake questionnaire cannot substitute for a charge, citing Welsh v. City of Shawnee, 1999 WL 345597 (10th Cir.1999). In Welsh, plaintiff filed an unverified information sheet before she filed her formal charge. Id. at *5. The information sheet expressly stated that it was not a charge of discrimination. Id. Plaintiffs information sheet included allegations of harassment, but the later filed formal charge did not allege harassment. Id. The Tenth Circuit determined that the formal charge, filed under oath, negated the information sheet. Id. Plaintiff cites two different Tenth Circuit cases in support of his" }, { "docid": "22931766", "title": "", "text": "became depressed and, for the first time, sought psychiatric help. He and his parents testified that he lost self-confidence, withdrew from his family, became angry, and lost interest in his community college studies. He subsequently brought this suit, alleging a number of counts of discrimination under the ADA and New York Human Rights Law. Specifically, he alleged that Wal-Mart took the following discriminatory actions: (1) transferring him from the pharmacy to the parking lot; (2) transferring him from the parking lot to the food department; (3) creating a hostile work environment; (4) failing reasonably to accommodate his disability; and (5) constructively discharging him. He also claimed that Wal-Mart made prohibited pre-employment disability inquiries, and he alleged intentional infliction of emotional distress. The jury returned a mixed verdict. It found that Brady was disabled and/or was regarded as disabled within the meaning of the ADA and that Wal-Mart discriminated against him on the basis of his disability by transferring him from the pharmacy to the parking lot. It also found that Wal-Mart subjected him to a hostile work environment. Moreover, it found that Wal-Mart failed reasonably to accommodate him and that Wal-Mart had made an impermissible pre-employment inquiry in its job description. It found that Chin aided and abetted in the discrimination but that Bowen—who was a defendant below—did not. The jury, however, also found that Brady was not constructively discharged, and that he had not been subjected to intentional infliction of emotional distress. Based on these findings, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And, pursuant to 42 U.S.C. § 1981a(b)(3)(D), the punitive damages award was reduced to the statutory cap of $300,000. Appellants filed a Rule 50(b) motion for judgment as a matter of law and a Rule 59 motion for a" }, { "docid": "14466928", "title": "", "text": "still have invaded plaintiffs privacy by retaining copies of the letters, once they had determined that the letters were personal, and sending them on to plaintiff without informing him that the letters had been opened. The defendants also argue that a reasonable person would not have found the acts alleged to be “highly offensive.” The alleged acts described above create a genuine issue of material fact as to this issue. I must leave it to the jury to determine whether defendants’ actions would have been highly offensive to the reasonable person. ADA Claims The defendants argue that they are entitled to judgment on the two ADA claims added in the Second Amended Complaint because plaintiff did not file a charge with the EEOC as to these claims, and therefore he failed to exhaust his administrative remedies. 42 U.S.C. § 12117(a). According to well-settled law, the scope of a judicial complaint is not limited to the four corners of the EEOC charge. “The parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination ... including new acts which occurred during the pendency of proceedings before the Commission.” Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976); see also Hicks v. ABT Assoc., Inc., 572 F.2d 960 (3d Cir.1978) (plaintiff permitted to add sex discrimination claim even though EEOC only investigated race discrimination allegation because sex discrimination claim would have grown out of proper EEOC investigation of race claim). The most important consideration in determining whether the plaintiffs judicial complaint is reasonably related to his EEOC charge is the factual statement. Sanchez, 431 F.2d at 462. The facts that support plaintiffs claims of improper medical inquiry and intimidation and coercion appear in the administrative charge. Plaintiffs Exhibit I, ¶¶ 6-23. Therefore, one would reasonably expect the claims to have grown out of a proper EEOC investigation. Plaintiff has not failed to exhaust his administrative remedies. Improper Medical Inquiry Defendants also argue that Doe has failed to state a claim" }, { "docid": "10626578", "title": "", "text": "to name Cash as a defendant in their Title VII claims. Thus, Cash’s motion to dismiss for lack of subject matter jurisdiction is denied. II. Cash next contends that the plaintiffs’ quid pro quo sexual harassment claim must be dismissed pursuant to Rule 12(b)(1), F.R.Civ.P, for lack of subject matter jurisdiction. In Title VII cases, district courts have subject matter jurisdiction only over those claims reasonably related to the factual allegations in the plaintiffs EEOC charge. Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir.1992). Cash argues that the plaintiffs’ EEOC charges bear no relationship to their quid pro quo claim because the charges assert only a “hostile environment” theory of sexual harassment. Indeed, the plaintiffs’ specifically allege in their EEOC charges that the conduct of defendants Offenhartz and Cash created a “hostile environment,” but do not expressly state that the defendants’ behavior constituted quid pro quo sexual harassment. (Exhibit A, Plaintiffs’ Atty. Affirmation). However, plaintiffs are not required to articulate in their EEOC charges the precise legal theories which they will later assert in a Title VII lawsuit. Rather, a complainant filing an EEOC charge is only required “to describe generally the action or practices complained of.” EEOC Procedural Regulations, 29 CFR § 1601.12(b) (1992). In Gomes, the Second Circuit concluded that it was unaware of any case in which a plaintiffs failure, in an EEOC charge, “to properly identify a theory of discrimination barred a subsequent suit in federal court relating to the precise incident challenged in the EEOC complaint.” 964 F.2d at 1335. Thus, the factual allegations in an EEOC charge, rather than any legal theories stated therein, should be the focus for determining whether a cause of action is reasonably related to the plaintiffs EEOC charge. In making this decision, the court must look “not merely to the four corners of the often inarticulately framed charge, but take into account the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” Id. (quoting Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir.1979)). Cash also argues that" }, { "docid": "9587612", "title": "", "text": "include failure to make reasonable accommodations for a known disability absent undue hardship to the employer. Id. § 12112(b)(5)(A). In this case, it is undisputed that plaintiff has a disability and that he has a right to be reasonably accommodated for his disability. Specifically, plaintiff has a visual impairment, which inhibits his ability to focus on written work, causes his eyes to tear when he strains them, and prevents him from seeing under certain conditions, such as natural or harsh light. Plaintiff concedes that the District of Columbia eventually accommodated his visual disability, but claims that defendants unlaw fully delayed their attempts at accommodation. As previously stated, plaintiff is required to exhaust his administrative remedies before bringing this civil suit. As a general rule, an ADA claim must be based upon specific instances of misconduct of which the EEOC is made aware within the statutorily-prescribed time. Shehadeh, 595 F.2d at 724. Plaintiff is precluded from raising claims that were not mentioned in his EEOC complaint or which could not have been expected to “grow out of his administrative charge.” Mayfield v. Meese, 669 F.Supp. 1123, 1127 (D.D.C.1987). The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that “the complaint in the civil action ... may properly encompass any ... discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.” Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971); see Jenkins v. Blue Cross, 538 F.2d 164, 167 (7th Cir.1976). The D.C. Circuit has stated that the purpose of the administrative complaint is to afford the agency a “reasonable opportunity to investigate violations assertedly committed by the putative defendant.” Shehadeh, 595 F.2d at 728. However, the Circuit has also acknowledged that an EEOC complaint should be construed liberally. Id. at 727. Plaintiff filed his charge of discrimination with the EEOC on September 17, 1993. The complaint alleges retaliation and intentional disability and physical appearance discrimination occurring at the Vending Facilities Program, promulgated by defendants Hill, Mesmer and Williams. Here," }, { "docid": "14884098", "title": "", "text": "of summary judgment to another is a question we have not heretofore considered. There is no need for us to decide that question, however, in this case. As we state in our contemporaneously filed memorandum disposition — in connection with our consideration of the award of,partial summary judgment to the plaintiffs — the facts are not sufficiently developed to allow our resolution of the issues involved in the competing summary judgment motions. Accordingly, reviewing the defendants’ motion would serve no legitimate purpose. c. We next address the defendants’ contention that the district court erred “in certifying a class on plaintiffs’ disparate impact in promotions where class claims were not raised in plaintiffs administrative charge of discrimination.” Defendants argue that the scope of the judicial complaint impermissibly exceeds the scope of the administrative charge. We disagree. To establish federal subject matter jurisdiction, a plaintiff must exhaust his administrative remedies before filing a federal complaint. As we have explained, “ ‘[t]he jurisdictional scope of a Title VII claimant’s court action depends upon the scope of both the EEOC charge and the EEOC investigation.’ ” EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994) (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990)). The district court here had jurisdiction over the plaintiffs’ claim of class discrimination in promotion if “that claim fell within the scope of the EEOC’s actual investigation or an EEOC investigation which \\could\\ reasonably be expected to grow out of the charge of discrimination.” Id. (citation and internal quotation marks omitted). In his original complaint filed with the DFEH Paige alleged that he was denied a promotion because of an alleged failure to achieve a high enough score on the promotional examination for State Traffic Captain, which examination was biased, discriminatory, non job-related, non valid and not in conformance with all applicable federal and state laws, rules and regulations ... in that the examination was conducted without consideration of an effective affirmative action program. This complaint was referred to the EEOC pursuant to a workshare agreement which requires that “copies of all complaints received by one agency" }, { "docid": "22029262", "title": "", "text": "no effort to show that he is attempting to invoke the Court’s jurisdiction under the Little Tucker Act. FACTUAL BACKGROUND The EEOC did not file a civil action on Cortez’ behalf, but issued a right to sue letter to Cortez after completing its investigation and efforts at conciliation. See Complaint ¶ 44, at 6, filed Dec. 7, 2006 (Doc. 1), 29 U.S.C. § 626(e); 29 C.F.R. § 1626.18. Cortez was then free to file a private civil action within ninety days after the EEOC issued the right-to-sue-letter. See 29 U.S.C. §§ 626(c)(t), 626(e). Cortez filed an action, and private counsel represented Cortez in the civil action. See Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Entry of Appearance, filed Feb. 17, 2004 (Doc. 5). In Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Cortez filed a complaint against Wal-Mart Stores, Inc. for race and age discrimination under Title VII. See Complaint for Racial and Age Discrimination Under Title VII, filed Oct. 30, 2003 (Doc. 1). On January 14, 2005, the Honorable Bruce D. Black issued a Memorandum Order and Opinion which dismissed some of Cortez’ claims for failure to exhaust. See Memorandum Order and Opinion at 4-6, filed Jan. 14, 2005 (Doc. 50). The claims dismissed for failure to exhaust included failure to promote and constructive discharge. See id. On May 19, 2005, a judgment was entered in favor of Cortez following a jury trial on his remaining claims. See Judgment, filed May 19, 2005 (Doc. 94). Cortez recovered from Wal-Mart for back pay, liquidated damages, interest accrued on the award from the date of that Judgment’s entry, and costs. See id. On January 23, 2007, the Judgment was satisfied. See Satisfaction of Judgment, filed Jan. 23, 2007 (Doc. 128). ' The alleged factual basis of Cortez’ tort claims is that Wright, as the investigator for the EEOC on Cortez’ charges of age discrimination, did not amend Cortez’ charges or file additional charges of discrimination on Cortez’ behalf with respect to a number of possible subsequent, additional claims—failure to promote, hostile workplace, retaliation, and constructive discharge." }, { "docid": "15266911", "title": "", "text": "that Johnson can prove no set of facts which would entitle him to relief. Therefore, N.T.I. is not entitled to dismissal under Rule 12(b)(6). d. Administrative Prerequisite. N.T.I. requests dismissal of the Title VII claim because the complaint fails to allege Johnson complied with the administrative prerequisite to bringing such a claim. N.T.I. notes the complaint seeks Title VII relief on the ground that Johnson was discharged because of his race, but fails to allege a complaint was filed with the EEOC on the basis of race. In the complaint, Johnson alleges on or about April 17, 1994, he filed a charge of discrimination under the Americans with Disabilities Act with the EEOC and later received a right to sue letter. “In order to bring a private employment suit under Title VII, a plaintiff must, as a precondition, have a “right to sue” letter from the EEOC, which issues only after administrative investigation and negotiation.” Jiron v. Sperry Rand Corporation, 423 F.Supp. 155, 158 (D.Utah 1975). In Jiron, Defendant Sperry Rand filed a motion to dismiss arguing the charge filed with the Industrial Commission and with the EEOC did not include allegations of racial or national origin discrimination or claims of lay-off discrimination. Id. The standard by which courts have evaluated such disputes is set out in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970). There, the court stated ‘“the “scope” of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” Id. at 159 (quoting Sanchez 431 F.2d at 466). The Jirón court held that in accordance with most courts’ liberal application of the Sanchez standard, “to satisfy that the scope of the administrative charge must be substantially identical to the scope of the judicial complaint, the plaintiffs need not show that specific claims now made were actually investigated by the EEOC or state agency, but only that they are ‘reasonably related’ to those initial charges.” Id. at 159. Johnson asserts his claim filed with the EEOC dealt with allegations of racial" }, { "docid": "22931778", "title": "", "text": "accommodated.” Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.2000). In this case, it was reasonable for the jury to find that Brady was disabled and/or that Appellants perceived him to be disabled. Accordingly, Wal-Mart was obligated to engage in the aforementioned interactive process. Wal-Mart failed to engage in this process, and therefore the district court was correct in declining to grant judgment as a matter of law on the failure to accommodate claim. D. Consent Decree At the time of Brady’s employment and throughout this litigation, Wal-Mart was subject to a nationwide consent decree pursuant to EEOC v. Wal-Mart Stores, Inc., No. S99 CIV 0414, 2001 WL 1904140 (E.D.Cal. Dec.17, 2001). The consent decree required Wal-Mart, inter alia, not to engage in any employment practice that would violate the ADA, to train Wal-Mart employees in ADA compliance, and to formulate accurate job descriptions that are consistent with actual job requirements. Id. The district court allowed Brady to introduce into evidence a redacted version of the consent decree “for the limited purpose of showing that Wal-Mart was aware of its obligations under the ADA.” Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d at 179. Appellants argue that the consent decree was irrelevant and prejudicial because Wal-Mart was not on trial for violating the consent decree, and that a new trial is the proper remedy. The trial court’s evidentiary rulings are reviewed only for abuse of discretion. See, e.g., Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). A consent decree may properly be admitted to demonstrate that a defendant was aware of its legal obligations. United States v. Gilbert, 668 F.2d 94, 97 (2d Cir.1981). The district judge here instructed the jury that “the only fact you should take into consideration about the ... consent decree ... is that Wal-Mart undertook certain obligations. It has nothing to do with this case and what preceded it. Just that they had these obligations they agreed to. And that is the only purpose that those obligations that are being referred to" }, { "docid": "6660335", "title": "", "text": "whether Dirks’ sex discrimination claim can be considered “like or reasonably related” or “growing out of’ Dirks’ allegations of age discrimination. To determine whether allegations not specified in the complaint of discrimination are like or reasonably related to those that are, a court inquires whether the incidents are within the scope of what the agency would reasonably be expected to investigate. As the Ninth Circuit Court of Appeals has observed: “The district court has subject matter jurisdiction over allegations of discrimination that either ‘fell within the scope of the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ ” Yamaguchi, 109 F.3d at 1480 (quoting Farmer Bros., 31 F.3d at 899). The Eighth Circuit Court of Appeals has discussed and applied the requirement that claims raised in a judicial complaint be like or reasonably related to those raised in the administrative complaint of discrimination in order to survive. Two of these decisions are instructive. In Williams, the plaintiff filed an EEOC complaint of discrimination based on race in 1987 against her employer, a municipal agency, following denial of a promotion which she had sought. Williams, 21 F.3d at 221. The EEOC concluded that there was no reasonable cause to support Williams’ Title VII claim and issued Williams a notice of right to sue. However, she did not file a lawsuit at that time. Id. In 1990, after again being denied a merit raise and promotion, Williams filed a complaint of discrimination based upon retaliation. The EEOC again found no merit in the charge and issued the right to sue notice. Id. On this occasion Williams did file suit against her employer, alleging discrimination on the bases of race and retaliation. Williams’ employer moved for partial summary judgment contending, inter alia, that the allegations of race discrimination set out in her complaint were beyond the scope of the EEOC complaint of discrimination which alleged only retaliation. Id. The district court agreed and the race discrimination claims were dismissed. In affirming the district court’s ruling on the motion and finding that" }, { "docid": "22931767", "title": "", "text": "hostile work environment. Moreover, it found that Wal-Mart failed reasonably to accommodate him and that Wal-Mart had made an impermissible pre-employment inquiry in its job description. It found that Chin aided and abetted in the discrimination but that Bowen—who was a defendant below—did not. The jury, however, also found that Brady was not constructively discharged, and that he had not been subjected to intentional infliction of emotional distress. Based on these findings, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And, pursuant to 42 U.S.C. § 1981a(b)(3)(D), the punitive damages award was reduced to the statutory cap of $300,000. Appellants filed a Rule 50(b) motion for judgment as a matter of law and a Rule 59 motion for a new trial. The court denied those motions except that it ordered that a new trial on the issue of compensatory damages be held unless Brady accepted a remittitur of the compensatory damages award from $2.5 million to $600,000. Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d at 217-18. Brady accepted the remittitur. This appeal followed. II. Discussion The appeal involves seven issues: (1) whether Appellants waived their right to move for judgment as a matter of law post-verdict by failing properly to move for judgment as a matter of law at the close of all of the evidence; (2) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s disability discrimination claims; (3) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s failure-to-accommodate claim; (4) whether the district court improperly admitted into evidence a nationwide consent decree and, if so, whether a new trial should be granted; (5) whether the district court erred in not granting Appellants judgment as a matter" }, { "docid": "4847334", "title": "", "text": "discrimination with the EEOC and subsequently receive a notice of right to sue before filing suit. Federal courts do not have subject matter jurisdiction over a plaintiff’s claim if the plaintiff fails to raise a Title VII claim before the EEOC. See id. In the Sixth Circuit, a plaintiffs failure to check a box to include a specific claim of discrimination in an EEOC charge does not preclude the plaintiff from bringing that uncharged claim in a judicial complaint if the facts alleged in the EEOC charge should have caused the EEOC to investigate the claim. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir.2004). In other words, a federal court has jurisdiction over those claims explicitly filed in the EEOC charge and claims that “can reasonably be expected to grow out of that charge.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir.1998); see also Ang, 932 F.2d at 545 (“The judicial complaint must be limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.”). Under this rule, a claim in a judicial complaint that an adverse action was motivated by a different type of discrimination than what was alleged in the EEOC charge will be precluded unless the newly-claimed basis for the action was sufficiently related to the facts of the EEOC charge. See, e.g., Ang, 932 F.2d at 546. In the instant case, Plaintiff was unrepresented when he filed his EEOC charge so the Court must broadly construe the charge to determine if a hostile work environment could be inferred. See id. (“Courts require [a] broad reading of the [EEOC] charge because most Title VII claimants are unschooled in the technicalities of the law and proceed without counsel.”). The only box checked by Plaintiff in his EEOC charge was the box indicating that he was subject to unlawful retaliation. (See D.E. 206-1 at 3.) In the explanatory section of Plaintiffs EEOC charge, however, Plaintiff indicated that he was “denied training whereas a similarly[-]situated White employee was afforded training.” (Id.) Furthermore, in the EEOC questionnaire attached to Plaintiffs" }, { "docid": "23251586", "title": "", "text": "contacted Dr. Legler and Dr. Legler subsequently changed his opinion regarding Mr. Jones’s lifting restrictions. The EEOC responded by letter, indicating that it had not filed a charge of discrimination because the information he provided did not demonstrate that his condition amounts to a disability within the meaning of the ADA. The agency also sought additional information from Mr. Jones. Mr. Jones only partially responded to the EEOC’s inquiry, providing additional information in response to one of three questions. The EEOC again advised Mr. Jones by letter that his questionnaire and supplemental materials were not being treated as a charge of discrimination. But on October 27, 2004, the EEOC sent Mr. Jones a dismissal of his charge and notice of his right to sue. The EEOC also sent UPS a copy of the dismissal and notice. This correspondence was the first notice UPS received from the EEOC regarding Mr. Jones’s allegations of discrimination. On January 24, 2005, Mr. Jones filed the instant action in federal district court, alleging disability discrimination (including failure to accommodate) and retaliation in violation of the ADA and wrongful discharge in violation of Kansas law. UPS moved for summary judgment on the grounds that Mr. Jones failed to exhaust his administrative remedies prior to filing suit, and in the alternative, no genuine issues of material fact exist on any of his disability or retaliation claims. Mr. Jones also sought partial summary judgment, contending, in part, that he exhausted his administrative remedies as a matter of law. The District Court granted Mr. Jones’s motion with respect to exhaustion on all but his theory of pattern-or-practice discrimination. The court concluded, however, that UPS was entitled to summary judgment on the merits of Mr. Jones’s ADA claims. It held, in relevant part, that Mr. Jones had failed to raise a factual issue with respect to whether he was “disabled” and that he had failed to establish a prima facie case of retaliation under the ADA. Finally, the court denied UPS’s motion for summary judgment on the question of wrongful discharge under Kansas law, but declined to exercise supplemental jurisdiction" }, { "docid": "17841228", "title": "", "text": "cannot be heard by a federal district court until the EEOC has conducted an investigation and determined the validity of the claim. Id. at 138-139. If the EEOC dismisses an aggrieved person’s action, it will notify that person and issue a right to sue letter allowing that person 90 days in which to file suit in federal court. 42 U.S.C. § 2000e — 5(f)(1). Plaintiff sought State administrative remedies on the issues raised in the petitions before OAH but never proceeded to the EEOC before filing her complaint in federal district court. (Answer at 13-14.) Therefore, as the EEOC never issued plaintiff right-to-sue letters on these issues, the federal district court may not exercise original jurisdiction over the issues raised in plaintiffs petitions. Therefore, these claims will be dismissed. C. Additional Claims Plaintiffs complaint further alleges violations of Title VII which are not the subject of the two EEOC charges or the petitions. Before a federal district court can assume original jurisdiction over Title VII claims, in states which have anti-discrimination laws for the protection of State or local government employees, the claimant must first commence proceedings under state law and the EEOC must have issued a right-to-sue letter on the matter. Davis v. North Carolina Dept. of Correction, 48 F.3d 134, 137 (4th Cir.1995). Here, plaintiff has not done so. Therefore, the claims made in plaintiffs complaint and amended complaint are barred for failure to comply with procedural prerequisites set forth in 42 U.S.C. §§ 2000e-5(c) and 2000e-5(f)(l). IV. CONCLUSION For the reasons stated above, defendant’s motion for judgment on the pleadings is GRANTED and the complaint and amended complaint are DISMISSED. . Because the decision on the above issues is dispositive of the entire case, the remaining arguments made by defendant in its motion need not be addressed." } ]

[ { "docid": "10971820", "title": "", "text": "of $75.00 as plaintiff has requested. The government contends that $7.00 an hour, the law clerk’s hourly wage, is a more reasonable rate. The court does not agree. In Blum v. Stenson, — U.S.-, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court held that fee awards under 42 U.S.C. § 1988 for a nonprofit legal services organization should be based on prevailing market rates. The Court rejected the government’s argument, analogous to its argument here, that the fee award should be calculated according to a cost-based standard. Upon reviewing the record it is clear that the time spent by the attorney’s law clerk was well invest ed. The EAJA provides that “... the amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of services furnished....” 28 U.S.C. § 2412(d)(2)(A). An hourly rate of $25.00 clearly is not excessive and appears to correspond to the market rate requirements set forth in the statute. NAACP v. Donovan, 554 F.Supp. 715, 719 (D.D.C.1982) (awarding $35/hour for work done by a law clerk); Poston v. Fox, 577 F.Supp. 915, 920 (D.N.J.1984) (awarding $35/hour for paralegal work). Reducing this hourly rate would only discourage the use of law clerks who operate at a significantly lower hourly rate than attorneys. The court, therefore, will grant plaintiffs motion for fees under the EAJA for a total of 2OV2 hours of attorney time compensated at $75 an hour, and 12 hours of law clerk time compensated at $25 an hour, for a total award of $1837.50. An appropriate order will be entered. . The statistics for the fiscal years 1982 and 1983 are as follows:" } ]

[ { "docid": "5652057", "title": "", "text": "fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C.Cir.1998). In calculating the hours “reasonably expended” in the litigation, courts must exclude “hours that are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). And in determining a “reasonable hourly rate,” the Court must look to “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). “For public-interest or government lawyers who do not have customary billing rates, courts in this circuit have frequently employed the ‘Laffey Matrix,’ a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev’d on other grounds, 746 F.2d 4 (D.C.Cir.1984).” Judicial Watch, 774 F.Supp.2d at 232; accord Hansson v. Norton, 411 F.3d 231, 236 (D.C.Cir.2005) (“[T]he ‘reasonable hourly rate’ is guided by the Laffey matrix prepared by the U.S. Attorney’s Office.”). “A plaintiff’s overall success on the merits also must be considered in determining the reasonableness of a fee award.” Judicial Watch v. U.S. Dep’t of Commerce, 470 F.3d 363, 369 (D.C.Cir. 2006) (citing Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)); see also Hensley, 461 U.S. at 440, 103 S.Ct. 1933 (“We hold that the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees.”). Thus, “where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained,” Hensley, 461 U.S. at 440, 103 S.Ct. 1933, excluding “ ‘nonproductive time or ... time expended on issues on which [the] plaintiff ultimately did not prevail,’ ” Weisberg, 745 F.2d at 1499 (citation omitted). As the Supreme Court explained in Hensley:" }, { "docid": "12288016", "title": "", "text": "Supreme Court’s recent decisions in Hensley v. Eckerhart, 461 U.S. 1933, 103 S.Ct. 1933 (1983) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The initial step in this evaluation is to determine the number of hours reasonably expended and multiply that number times the customary fee for similar work. Hensley v. Eckerhart, 103 S.Ct. at 1940; Anderson v. Morris, 658 F.2d 246 (4th Cir. 1981). In determining a reasonable hourly rate, the court should consider a number of factors, including the experience and skills of the attorney, the quality of the representation, the novelty and complexity of the litigation and the results obtained. Blum v. Stenson, 104 S.Ct. at 1548-49. In addition, the court should consider, to the extent applicable, the remaining Johnson factors. See Redic v. Gary H. Watts Realty Co., 586 F.Supp. 699 (W.D.N.C.1984), rev’d on other grounds, 762 F.2d 1181 (4th Cir.1985). In determining the number of hours reasonably expended, the court has reviewed counsel’s affidavit and the record in general. Based upon this review the court concludes that the 36.25 hours requested by counsel are excessive and after employing a ten percent across-the-board reduction to counsel’s request, the court finds counsel reasonably expended 32.65 hours in the conduct of this litigation. With regard to a proper hourly rate, the court begins its analysis by turning to a recent 1985 North Carolina Bar Association Survey of typical hourly rates charged by attorneys in this state, and finds the survey, as applied to plaintiff's counsel, would result in a fee of $64.00 per hour. Since the maximum rate allowed under the EAJA is generally $75 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), and counsel has requested this rate in her application, the court will proceed to utilize the relevant Johnson and Barber factors to determine whether $64 per hour is reasonable for this case or should be adjusted upward or downward. 1. The Novelty and Difficulty of the Questions Raised. Although the social security framework requires some expertise, this action involved neither novel nor difficult issues. 2. The Skill Required to Properly Perform" }, { "docid": "13852747", "title": "", "text": "to determine the number of hours plaintiffs’ attorney reasonably expended on the litigation and multiply that figure by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The resulting yield is commonly known as the “lodestar,” which the court may then adjust up or down in its discretion depending on various considerations involved in the case. The court’s first step in determining the proper attorney’s fees in this case will be to ascertain the appropriate reasonable hourly rate. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir.1988) (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984)). The relevant legal community in this case is the area in which this court sits and the service provided was the litigation of a complex employment discrimination suit by an experienced attorney who demonstrated a considerable amount of skill in organizing and advocating plaintiffs’ case. A review of the evidence the parties have submitted regarding a reasonable hourly rate in such an area for such services indicates that the prevailing rate a reasonably comparable attorney would receive is $135.00 per hour. Plaintiffs’ attorney in the instant case, therefore, is entitled to compensation at the rate of $135.00 per hour. The next step in deciding the appropriate attorney’s fees award is to ascertain the number of hours reasonably expended by plaintiffs’ attorney. In determining that figure, “ ‘excessive, redundant or otherwise unnecessary’ hours should be excluded from the amount claimed.” Norman, 836 F.2d at 1301 (citing Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40). A careful review of the 2242.50 hours submitted by plaintiffs’ attorney does not reveal the presence of any excessive, redundant or otherwise unnecessary hours which should be excluded from the amount he has claimed. Plaintiffs’ attorney has used good “billing judgment” by submitting only hours which it would not be unreasonable" }, { "docid": "4438393", "title": "", "text": "will subsequently issue a separate order regarding the appropriate amount to be awarded. IT IS SO ORDERED. ON AMOUNT OF- ATTORNEY FEES In our May 24, 1985 Order, we found that respondent was entitled to an award under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (hereafter “Act” of “EAJA”), for attorney fees and expenses incurred after October 12, 1985, and allowed petitioner additional time to file specific objections to the amount of fees and expenses requested. Having carefully reviewed petitioner’s objections, respondent’s reply thereto, and respondent’s documentation, we find that respondent is entitled to an award of $17,015.10 for attorney fees and $614.58 for costs, for the reasons set forth below. Respondent incurred a total of $30,-082.50 in fees and $729.90 in costs in litigating this action. Out of this amount, $7,907 in fees and $115.32 in costs were incurred on or before October 12, 1984; hence this Order addresses respondent’s remaining request for $22,175.50 in fees, and $614.59 in costs. Calculation of the award requires a determination of the appropriate hourly rate multiplied by the number of hours reasonably expended by counsel. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). Petitioner objects to the hourly rates requested ($85.00/hour for attorneys Matthew Ross and Victoria Chin, and $25.00/hour for law clerks) and contends that an unreasonable number of hours were spent on certain tasks. Petitioner further contends that respondent should not be compensated for briefing on the Rule 11 issue and that certain hours requested have not been properly documented or do not relate to the instant litigation. A. The Hourly Rate Section 2412(d)(2)(A)(ii) provides that “[Attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee....” “In enacting this fee limitation, Congress attempted to provide full market compensation for successful litigants while at the same time, containing costs.” Action on Smoking and Health v. Civil Aeronautics" }, { "docid": "3643260", "title": "", "text": "Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). For public-interest or government lawyers who do not have customary billing rates, courts in this circuit have frequently employed the “Lajfey Matrix,” a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev’d on other grounds, 746 F.2d 4 (D.C.Cir.1984). See Covington v. District of Columbia, 57 F.3d 1101, 1105-11 (D.C.Cir.1995) (noting the value of the Laffey matrix and affirming a fee award based in part on its use). Once the Court has determined the proper lodestar amount, it has discretion to adjust that amount on the basis of certain factors. See Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1499-1500 (D.C.Cir.1984); Natl Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1328-29 (D.C.Cir.1982). The Court will first address Judicial Watch’s rate calculations and hours expended. 1. Rate Calculations and Hours Expended in Litigation Here, Judicial Watch used the Lajfey Matrix to calculate the proper hourly rate for each of the attorneys and paralegals who worked on this case. See PL’s Mot. Ex. 1 at 7. Because DOJ does not dispute Judicial Watch’s rate calculations, the Court will accept them. The Court further concludes that Judicial Watch’s time entries are sufficiently clear and detailed to carry Judicial Watch’s burden of establishing the reasonableness of its fee request. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C.Cir.2004). DOJ, however, takes issue with the number of hours for which Judicial Watch seeks compensation. DOJ accuses Judicial Watch of failing to exercise “billing judgment” as described in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983): The district court ... should exclude from th[e] initial fee calculation hours that were not ‘reasonably expended.’ ... Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee" }, { "docid": "7459797", "title": "", "text": "by the attorney; (2) value the services according to the customary fee and quality of the legal work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case.” Leroy v. City of Houston, 831 F.2d 576, 583 n. 11 (5th Cir.1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988). In step one the district court determines compensable hours from the attorney’s time records, including only hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Counsel is required to “exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Id. Ideally, billing judgment is reflected in the fee application, showing not only hours claimed, but also hours written off. See Leroy, 831 F.2d at 576. The burden is on the fee petitioner to prove that the hours claimed were reasonably expended. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Leroy, 831 F.2d at 586. In step two the court selects “an appropriate hourly rate based on prevailing community standards for attorneys of similar experience in similar cases.” Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1084 (5th Cir.1985). The number of compensable hours is then multiplied by the selected hourly rate to produce the “lodestar.” Id. Finally, the district court may, in appropriate cases, adjust the lodestar up or down in accordance with relevant Johnson factors not already included in the lodestar. “[T]he ‘novelty [and] complexity of the issues,’ ‘the special skill and experience of counsel,’ the ‘quality of representation,’ and the ‘results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I); see also Blum v. Stenson, 465 U.S. 886, 898-900, 104" }, { "docid": "10496454", "title": "", "text": "given way to a flood of insignificant claims being litigated in the hopes of large attorney’s fees. Ultimately, this Court must rely on its limited discretion and the good faith of the parties to curb these abuses and to ensure that these statutes actually benefit the named plaintiff and society at large. A. Attorney’s Fees and Costs — Merits It is undisputed that fees to a prevailing party are provided for under the FLSA. 29 U.S.C. § 216(b). The district court, however, has considerable discretion in calculating attorney’s fees awards. Vocea v. Playboy Hotel of Chicago, Inc., 686 F.2d 605 (7th Cir.1982). In determining the amount of a fee award, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). In Hensley, the Supreme Court explained that the most useful starting point for determining the amount of a “reasonable fee” is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433, 103 S.Ct. at 1939. This calculation, frequently referred to as the “lodestar” figure, should provide an “objective basis” by which to value a lawyer’s services. The Supreme Court emphasized the use of “billing judgment” by lawyers when deciding which hours are “properly billed to one’s adversary pursuant to statutory authority.” Id. at 434, 103 S.Ct. at 1940. The Court also stressed: Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. Id. This Court understands the Supreme Court’s admonition to mean that attorney’s fees must be both reasonable and necessary. 1. Reasonable Billing Rate A reasonable billing rate is normally arrived at by reference to the “prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). A fee applicant is" }, { "docid": "5652056", "title": "", "text": "was legally justified in withholding other documents. Yet, because Judicial Watch has not argued that the DOJ was “‘recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior,’ ” Davy, 550 F.3d at 1162 (citations omitted), and considering that the agency attempted to provide some legal justification for its withholdings to Judicial Watch at the administrative level, the Court finds that this factor weighs neither for nor against awarding fees to Judicial Watch; rather, it is neutral. In sum, the Court concludes that three of the four fee entitlement factors weigh in favor of awarding fees to Judicial Watch. Therefore, Judicial Watch is both eligible and entitled to fees and costs, and the Court must now consider the reasonableness of Judicial Watch’s requested award. C. Reasonableness of Requested Fees and Costs The FOIA permits an award of “reasonable attorney fees and other litigation costs” to a plaintiff that demonstrates its eligibility for and entitlement to such an award. 5 U.S.C. § 552(a)(4)(E)(i) (emphasis added). “The usual method of calculating reasonable attorney’s fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C.Cir.1998). In calculating the hours “reasonably expended” in the litigation, courts must exclude “hours that are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). And in determining a “reasonable hourly rate,” the Court must look to “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). “For public-interest or government lawyers who do not have customary billing rates, courts in this circuit have frequently employed the ‘Laffey Matrix,’ a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev’d on other grounds, 746 F.2d 4 (D.C.Cir.1984).” Judicial Watch, 774 F.Supp.2d at" }, { "docid": "4438399", "title": "", "text": "440, 443 (D.D.C.1984), and Hyatt v. Heckler, 586 F.Supp. 1154, 1157 (W.D.N.C.1984), vacated and remanded on other grounds, 757 F.2d 1455 (4th Cir.1985), we believe that a $25 hourly rate is reasonable, appropriate, and supported by the case law. See Burt v. Heckler, 593 F.Supp. 1125, 1132-33 (D.N.J.1984); Hyatt, supra. Such a rate will compensate respondent for fees incurred, and as noted by the court in Burt, supra, reducing this rate would only “discourage the use of law clerks who operate at a significantly lower hourly rate than attorneys.” 593 F.Supp. at 1133. B. Reasonableness of Hours Expended Counsel are only entitled to compensation for hours reasonably expended. They must exercise billing judgment and make a “good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary...” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Action on Smoking, supra, 724 F.2d at 220. Petitioner first contends that 40 hours was an excessive amount of time to spend preparing proposed findings of fact and conclusions of law re: denial of the petition for injunctive relief, and suggests that only four hours were needed. At the outset, we note that the Court requested counsel to prepare detailed proposed findings and conclusions with citations to the record. In addition, we reject the Board’s suggestion that petitioner’s conclusory “boiler-plate” proposed findings and conclusions provide an appropriate yardstick. Given the minimal burden borne by the Board, the extensive record, and the fact that such injunctions are rarely denied, petitioner’s proposed findings and conclusions certainly do not provide a helpful or appropriate reference. Nevertheless, we conclude that 40 hours goes somewhat beyond a reasonable investment of time given the relative brevity of the proceedings involved. Thus, we will reduce the number of hours by 10 for a total of 30 hours for preparation of the proposed findings of fact and conclusions of law. Petitioner also contends that the request for fees incurred during litigation of the attorney fees application are excessive. Respondent seeks $1,079.50 for research and preparation of the original EAJA application and" }, { "docid": "4438398", "title": "", "text": "rate based on “special factors”, § 2412(d)(2)(A)(ii) of the Act specifically allows the Court to make such an adjustment based on an increase in the cost of living. According to the Consumer Price Index, “All Urban Consumers” Index, the “U.S. city average” cost of living increased 11.8% between October 1981 and August 1984. Dep’t of Labor, Monthly Labor Review, Yol. 106, No. 11 (Nov. 1983), and Vol. 107, No. 11 (Nov. 1984). The declaration of Ross, 1111, page 5, also indicates that the billing rate for respondent has increased slightly over 10% since 1981 when the Act became effective due to increased operating costs. We conclude that the special factors discussed above, and the increased costs since EAJA’s enactment, “justify” enhancing the hourly rate to $85 per hour for respondent’s counsel. 28 U.S.C. § 2412(d)(2)(A)(ii). Petitioner also objects to the $25 hourly rate requested for time spent by law clerks. While courts have taken various approaches to this issue, compare Coleman v. Block, 589 F.Supp. 1411, 1417, 1422 (D.N.D.1984) with Ashton v. Pierce, 580 F.Supp. 440, 443 (D.D.C.1984), and Hyatt v. Heckler, 586 F.Supp. 1154, 1157 (W.D.N.C.1984), vacated and remanded on other grounds, 757 F.2d 1455 (4th Cir.1985), we believe that a $25 hourly rate is reasonable, appropriate, and supported by the case law. See Burt v. Heckler, 593 F.Supp. 1125, 1132-33 (D.N.J.1984); Hyatt, supra. Such a rate will compensate respondent for fees incurred, and as noted by the court in Burt, supra, reducing this rate would only “discourage the use of law clerks who operate at a significantly lower hourly rate than attorneys.” 593 F.Supp. at 1133. B. Reasonableness of Hours Expended Counsel are only entitled to compensation for hours reasonably expended. They must exercise billing judgment and make a “good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary...” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Action on Smoking, supra, 724 F.2d at 220. Petitioner first contends that 40 hours was an excessive amount of time to spend preparing proposed findings of fact and" }, { "docid": "13646491", "title": "", "text": "absent special circumstances. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Plaintiff is entitled to recover costs and attorney’s fees in this action. 49. The starting point in determining an objective estimate of the value of attorney’s services is to multiply hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed. 2d 40 (1983). Taking into account the prevailing market rates in the Savannah community for similar services by lawyers of reasonably comparable skills, experience, and reputation, I find that a reasonable hourly rate for Mr. Lasky’s and Ms. Bunce’s services is $100.00 per hour; and a reasonable hourly rate for Mr. Ashman’s services is $125.00. 50. Excessive, redundant, or otherwise unnecessary hours should be excluded from an award of attorney’s fees. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939. “Redundant hours generally occur where more than one attorney represents a client.” Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1301 (11th Cir.1988). While there is nothing inherently unreasonable about multiple representation, in this case the use of three attorneys to handle plaintiff’s case was unnecessary. For reasons outlined in the findings of fact, the hours submitted by Mr. Lasky and Ms. Bunce shall be compensated in full, but Mr. Ashman’s hours shall be reduced to ten. 51. In determining reasonable hours, a district court must deduct time spent on discrete and unsuccessful claims. Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. Here, plaintiff did not prevail on her wage discrimination claim. It appears that a significant percentage of separable hours were spent on the wage discrimination claim. Accordingly, a total adjustment of $12,000.00 shall be made for time spent on the wage discrimination claim. 52. Plaintiff has a concurrent action pending in state court. It appears that the factual issues in the state action substantially mirror the factual issues in this action. Thus, it does not appear that any hours spent preparing this case are excludable as having been necessary only to the state court action." }, { "docid": "11097023", "title": "", "text": "of living from the month the hours were billed through June 1989. The court also enhanced paralegal fees and other expenses using the same formula. All com-pensable attorney time billed at $75 per hour or more was calculated at the rate of $75 per hour. That amount was then enhanced by 36.5 percent, to reflect the increase in the cost of living between 1981 and June 1989. This produced an hourly rate of $102.38 per hour for all the compen-sable time billed by OAFs attorneys after 1981. The court refused to grant an enhanced compensation for the period after June 1989 on the ground that delay after that point was reasonable and therefore not a special factor under EAJA. As a result, the district court awarded OAI $295,720.17, rather than the $631,519.44 OAI requested. II A We first consider OAFs challenge to the district court’s decision to award fees for only three-fifths of the hours billed by OAFs attorneys for work on the fee applications. OAI protests that its lawyers worked diligently to cover all the bases necessary to obtain fees. That may be. But there is a point at which thorough and diligent litigation efforts become overkill. The district court must disallow claims for “excessive, redundant, or otherwise unnecessary” charges, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Action on Smoking and Health v. Civil Aeronautics Bd., 724 F.2d 211, 221 (D.C.Cir.1984), and the determination of how much to trim from a claim for fees is committed to the court’s discretion. See Pierce v. Underwood, 487 U.S. 552, 571, 108 S.Ct. 2541, 2553, 101 L.Ed.2d 490 (1988). As an example of excessive billing on the fee issue, the district court cited the time OAI’s attorneys spent on a 1989 memorandum updating the points and authorities. OAI requested $32,000 for 266 hours of attorney time and 74 hours of paralegal time for work on the memorandum and a reply. This was in addition to the $51,000 OAI sought for work done earlier on attorney’s fees issues while the case was languishing in the" }, { "docid": "23276233", "title": "", "text": "Social Security claimants. Furthermore, this testimony rebutted plaintiff’s evidence that there are only six to ten such attorneys .... Plaintiff next argues that the evidence shows that Social Security is a specialized area of the law requiring a great deal of study. However, the Supreme Court has stated that “[t]he novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjust-ment_” Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1548-49, 79 L.Ed.2d 891 (1984). We find this statement, made in the context of 42 U.S.C. § 1988, to be fully applicable to the EAJA. Plaintiff further argues that the evidence shows that the customary hourly rates for attorneys, such as [hers], with fifteen years of experience handling Social Security cases from 1980 to 1984 range from $100 to $200. However, Congress has expressed clearly its intention that prevailing market rates are relevant only up to $75 per hour. Therefore, customary rates above $75 per hour cannot support a claim in excess of the statutory maximum rate. See Action on Smoking and Health v. C.A.B., 724 F.2d 211, 216- 17 (D.C.Cir.1984) (“In enacting this fee limitation, Congress attempted to provide full market compensation for successful litigants while, at the same time, containing costs.”); Hyatt v. Heckler, 586 F.Supp. 1154, 1158 (W.D.N.C.1984), vacated on other grounds, 757 F.2d 1455 (4th Cir.1985). Plaintiff’s final argument is that the evidence demonstrates that Social Security is one of the least attractive areas for trial lawyers. Although this evidence may be probative as to plaintiffs assertion that there are few available attorneys and is therefore relevant to plaintiffs first argument, we do not believe it provides an independent justification for an award of a higher hourly rate. See Hyatt v. Heckler, supra, 586 F.Supp. at 1158. B. Post-Judgment Interest Plaintiffs second major assignment of error is that the district court erred in holding that sovereign immunity barred the assessment of post-judgment interest against the Secretary. The general rule is that the United States is not liable for interest unless" }, { "docid": "4438394", "title": "", "text": "rate multiplied by the number of hours reasonably expended by counsel. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). Petitioner objects to the hourly rates requested ($85.00/hour for attorneys Matthew Ross and Victoria Chin, and $25.00/hour for law clerks) and contends that an unreasonable number of hours were spent on certain tasks. Petitioner further contends that respondent should not be compensated for briefing on the Rule 11 issue and that certain hours requested have not been properly documented or do not relate to the instant litigation. A. The Hourly Rate Section 2412(d)(2)(A)(ii) provides that “[Attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee....” “In enacting this fee limitation, Congress attempted to provide full market compensation for successful litigants while at the same time, containing costs.” Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 217 (D.C.Cir.1984). In determining whether a “special factor” justifies an hourly rate of more than $75.00/hour, the Ninth Circuit recently held that it is proper for the court to apply the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied sub. nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Underwood v. Pierce, 761 F.2d 1342, 1347 (9th Cir.1985). The twelve Kerr factors are 1) the time and labor required, 2) the novelty and difficulty of the questions, 3) the skill requisite to perform the legal service properly, 4) the preclusion of employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and the results obtained, 9) the experience, reputation, and ability of the attorneys, 10) the undesirability of the ease, 11) the nature and length of the professional" }, { "docid": "12675067", "title": "", "text": "be followed. Barber v. Kimbrell’s Inc., 577 F.2d 216 (4th Cir. 1978), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The utilization of the Johnson factors has been modified by the Supreme Court’s recent decisions in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The initial step in this evaluation is to determine the number of hours reasonably expended and multiply that number times the customary fee for similar work. Hensley v. Eckerhart, 103 S.Ct. at 1940; Anderson v. Morris, 653 F.2d 246 (4th Cir.1981). In determining a reasonable hourly rate, the court should consider a number of factors, including the experience and skills of the attorney, the quality of the representation , the novelty and complexity of the litigation and the results obtained. Blum v. Stenson, 104 S.Ct. at 1548-49. In addition, the court should consider, to the extent applicable, the remaining Johnson factors. See Redic v. Gary H. Watts Realty Co., 586 F.Supp. 699 (W.D.N.C.1984), rev’d. on other grounds, 762 F.2d 1181 (4th Cir.1985). In determining the number of hours reasonably expended, the court has reviewed counsel’s affidavit and the record in general. Based upon this review, the court concludes counsel reasonably expended 21.50 hours in the conduct of this litigation, the exact amount requested by counsel. With regard to a proper hourly rate, the court begins its analysis by turning to a recent 1985 North Carolina Bar Association Survey of typical hourly rates charged by attorneys in this state, and finds the survey, as applied to plaintiff’s counsel, would result in a fee of $86 per hour. However, since the maximum rate allowed under the EAJA is generally $75 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), and counsel only requested that rate in his motion, the court will proceed to utilize the relevant Johnson and Barber factors to determine whether $75 per hour is reasonable for this case or should further be adjusted downward. 1. The Novelty and Difficulty of the Questions Raised. Although the" }, { "docid": "2102467", "title": "", "text": "is not a proper basis for adjusting the lodestar). . Even though the award may be received several years after services were rendered, plaintiffs are not entitled to an adjustment for delay. Library of Congress v. Shaw, — U.S. -, ---, 106 S.Ct. 2957, 2965-66, 92 L.Ed.2d 950 (1986) (adjustment to award of attorneys’ fees under Title VII for lost investment opportunity or effect of inflation due to delay is prohibited by the no-interest rule). . It is not sufficient for prevailing counsel to opine that all of the time claimed was usefully spent, and the district court should not uncritically accept counsel’s representations concerning the time expended. Sealey, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir.1984). The fee claimant must show that the time spent was reasonably necessary and that its counsel made \"a good faith effort to exclude from [the] fee request hours that are excessive, redundant, or otherwise unnecessary.\" Id. at 1385 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983)). . Plaintiffs submitted the affidavit of Charles J. Merten a member of the Oregon bar since 1963. In the affidavit, Mr. Merten states, \"I believe that these hourly rates are reasonable and consistent with those being charged by attorneys of comparable skill and experience on comparable matters in this community.” While we do not consider here the sufficiency of the evidence necessary to support the claimed fee rate, we note that Mr. Merten did not indicate that the rates sought were comparable to his rates, and that plaintiffs did not submit evidence to support Mr. Merten’s belief. . Even if the chosen ranges had been supported by the evidence, the district court offered no explanation why its award for the 1-205 services fell in the lower part of the chosen \"reasonable” ranges, while the award for contempt services fell at the absolute bottom of its ranges. Thus plaintiffs sought compensation for 403.4 hours spent on the contempt proceeding; the district court found 300-400 hours to be in the reasonable range; yet the court appears to have" }, { "docid": "22103350", "title": "", "text": "79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Title 42 U.S.C. § 1988 authorizes a district court to award reasonable attorney’s fees to a prevailing party in a civil rights action. A prevailing party should ordinarily recover attorney’s fees “unless special circumstances would render such an award unjust.” Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. The initial determination of reasonable attorney’s fees is calculated by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Id. at 433, 103 S.Ct. at 1939. In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended. Id. Those hours may be reduced by the court where documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary. Id. at 433-34, 103 S.Ct. at 1939-40. Next, the district court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney requesting fees. The Supreme Court has recognized that determining a reasonable or prevailing rate of compensation is “inherently difficult.” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. Determination of a reasonable hourly rate is not made by reference to rates actually charged the prevailing party. See White v. City of Richmond, 713 F.2d 458, 461 (9th Cir.1983). In determining a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. The district court is in the best position to determine in the first instance the number of hours reasonably expended in furtherance of the successful aspects of a litigation and the amount which would reasonably compensate the attorney. See Harmon v. San Diego County, 736 F.2d 1329, 1331 (9th Cir.1984); Pate v. Alameda-Contra Costa Transit District, 697 F.2d 870, 872-73 (9th Cir.1983). Although the district" }, { "docid": "4438397", "title": "", "text": "petitions brought under § 10(() of the National Labor Relations Act. Operating under considerable time constraints, respondent obtained exceptional results by persuading the court that petitioner had not met its minimum burden in a factually difficult and unusual case. Its successful defense enabled respondent to continue its picketing activities without substantial curtailment. Finally, we note that respondent’s oral and written presentations were of high caliber and reflected counsel’s expertise in such matters. With respect to the attorney fees application, although respondent did not obtain optimal results, given this court’s finding that petitioner’s position was “substantially justified” on and before October 12, 1984, the award of fees and costs incurred after October 12, 1984, still represents a significant success. Apparently, it is the first such award against the NLRB. (See Declaration of Ross, 1116 and Exhibit B). In addition, petitioner raised a novel and important issue concerning the eligibility of local unions under the Act. Respondent, by prevailing on this issue, obtained a valuable precedent. In addition to allowing for an upward adjustment of the hourly rate based on “special factors”, § 2412(d)(2)(A)(ii) of the Act specifically allows the Court to make such an adjustment based on an increase in the cost of living. According to the Consumer Price Index, “All Urban Consumers” Index, the “U.S. city average” cost of living increased 11.8% between October 1981 and August 1984. Dep’t of Labor, Monthly Labor Review, Yol. 106, No. 11 (Nov. 1983), and Vol. 107, No. 11 (Nov. 1984). The declaration of Ross, 1111, page 5, also indicates that the billing rate for respondent has increased slightly over 10% since 1981 when the Act became effective due to increased operating costs. We conclude that the special factors discussed above, and the increased costs since EAJA’s enactment, “justify” enhancing the hourly rate to $85 per hour for respondent’s counsel. 28 U.S.C. § 2412(d)(2)(A)(ii). Petitioner also objects to the $25 hourly rate requested for time spent by law clerks. While courts have taken various approaches to this issue, compare Coleman v. Block, 589 F.Supp. 1411, 1417, 1422 (D.N.D.1984) with Ashton v. Pierce, 580 F.Supp." }, { "docid": "3821491", "title": "", "text": "excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be excluded from an award of fees. Id. at 434, 103 S.Ct. 1933. 1. Reasonable Hours Expended Plaintiff has submitted a detailed declaration from his attorney, Alexandra Manbeck, delineating the hours she spent on this case. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (“The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.”). Ms. Manbeck’s declaration states that she spent a total of 50.25 hours on this case. (See Manbeck’s Deck at 5.) Ms. Manbeck additionally claims’ another 2.75 hours for researching and drafting her reply in support of Plaintiffs motion for attorney’s fees. (See Reply at 10.) Thus, she claims a total of 53 hours billed on this case. The government contends that Ms. Man-beck’s hours are excessive and should be reduced by approximately one-half. Specifically, the government argues that the hours billed should be reduced because this case did not involve complex issues and Ms. Manbeck was already familiar with the facts and administrative record. The Court is unpersuaded. To begin with, the Court finds Ms. Man-beck’s itemized statement of billable hours adequate and declines to reduce the hours on this ground. Cf. Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (“Where the documentation of hours is inadequate, the district court may reduce the award accordingly.”). Furthermore, the Court finds the 53 hours billed reasonable in light of the relative complexity of this social security appeal and the level of success Ms. Manbeck achieved for Plaintiff. Indeed, the Court notes that Ms. Manbeck achieved a complete success for Plaintiff in this action. See id. at 440, 103" }, { "docid": "3821490", "title": "", "text": "Cir.1994) (citations omitted); Grason Elec. Co. v. NLRB, 951 F.2d 1100, 1103 (9th Cir.1991). The government does not urge upon the Court that its position was substantially justified or that special circumstances exist here. In any case, these exceptions do not apply in this action because the Court held that the ALJ’s decision was erroneous and not based on substantial evidence in the record. (See Order dated November 23, 2004 at 12.) Cf. Yang, 22 F.3d at 217 (to demonstrate “substantial justification” the government “must prove that [its] position had a reasonable basis in both law and fact”) (citations omitted); Animal Lovers Volunteer Ass’n v. Carlucci, 867 F.2d 1224, 1226 (9th Cir.1989) (finding no special circumstances because “[t]he litigation on the merits did not involve a close or novel question”); United States v. Gavilan Joint Comty. Coll. Dist., 849 F.2d 1246, 1249 (9th Cir.1988). C. Reasonable Attorney’s Fees The award of attorney’s fees under the EAJA must be reasonable. 28 U.S.C. § 2412(d)(2)(A). The EAJA specifically provides that “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be excluded from an award of fees. Id. at 434, 103 S.Ct. 1933. 1. Reasonable Hours Expended Plaintiff has submitted a detailed declaration from his attorney, Alexandra Manbeck, delineating the hours she spent on this case. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (“The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.”). Ms. Manbeck’s declaration states that she spent a total of 50.25 hours on this case. (See Manbeck’s Deck at 5.) Ms. Manbeck additionally claims’ another 2.75 hours for researching and drafting" } ]

[ { "docid": "22443164", "title": "", "text": "constitutional problems under this Court's previous decisions interpreting the Fifth Amendment. Tot v. United States, 319 U. S. 463 (1943); Leary v. United States, 395 U. S. 6, 36 (1969). But of course statutes should be construed whenever possible so as to uphold their constitutionality. The statute does not outlaw all abortions, but only those which are not performed under the direction of a competent, licensed physician, and those not necessary to preserve the mother’s life or health. It is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception. When Congress passed the District of Columbia abortion law in 1901 and amended it in 1953, it expressly authorized physicians to perform such abortions as are necessary to preserve the mother’s “life or health.” Because abortions were authorized only in more restrictive circumstances under previous D. C. law, the change must represent a judgment by Congress that it is desirable that women be able to obtain abortions needed for the preservation of their lives or health. It would be highly anomalous for a legislature to authorize abortions necessary for life or health and then to demand that a doctor, upon pain of one to ten years’ imprisonment, bear the burden of' proving that an abortion he performed fell within that category. Placing such a burden of proof on a doctor would be peculiarly inconsistent with society’s notions of the responsibilities of the medical profession. Generally, doctors are encouraged by society’s expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. We are unable to believe that Congress intended that a physician be required to prove his innocence. We therefore hold that under D. C. Code Ann. § 22-201, the burden is on the prosecution to plead and prove that an abortion was not “necessary for the preservation of the mother’s life or health.” There" } ]

[ { "docid": "13968584", "title": "", "text": "required. During the second half of its gestation period a fetus shall be considered potentially ‘viable’. Minn.Stat. § 145.411, subd. 2. The District Court reasoned that including the term “potentially viable” in the definition of “viable” had the effect of establishing a presumption that viability occurred at the end of the twentieth week. It held that this was inconsistent with the Supreme Court decisions in Roe v. Wade, supra, and Doe v. Bolton, supra, which place the earliest point of viability at the twenty-fourth week. In support of its position, it cited an absence of evidence to support the state’s determination that viability occurs at twenty weeks, and the fact that the decision as to whether or not a particular fetus is viable must be left to the medical judgment of the physician because the point of viability will vary from case to case. Hodgson v. Anderson, supra at 1016. This holding was cited with approval by the Supreme Court in Planned Parenthood of Central Missouri v. Danforth, supra, - U.S. at- n.5, 96 S.Ct. 2831, and cannot be disturbed by us. Had “viable” been defined simply as “ability to live outside the womb even though artificial aid may be required” and had the word “viable” instead of the term “potentially viable” been used in the operative sections of the Minnesota abortion law, then the offending sections of the statute, Minn.Stat. §§ 145.411, subd. 2,145.-412, subd. 3(2) and (3), and 145.415, could have been sustained under Planned Parenthood of Central Missouri v. Danforth, supra, - U.S. at-, 96 S.Ct. 2831. B. Regulation of abortion procedure. Several of the challenged provisions of the Minnesota abortion law were found by the District Court to incorporate by reference the impermissible definition of viability and, therefore, unconstitutionally restrict the availability of abortions during the second trimester. Under Roe, the state may only regulate the abortion procedure to the extent it preserves and protects maternal health during the second trimester of pregnancy. Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. 705. Minn.Stat. § 145.412, subd. 3, provides that: It shall be unlawful to" }, { "docid": "23345911", "title": "", "text": "at 732. The Danforth plaintiffs challenged the ban on the ground that it operated to preclude virtually all abortions after the first trimester, because a substantial percentage of all abortions performed in the United States after the first trimester, around 70% according to testimony, were effected through the procedure of saline amniocentesis. See Danforth, 428 U.S. at 76, 96 S.Ct. at 2844-45. The Court struck down the regulation because it would inhibit the vast majority of abortions after the first twelve weeks of pregnancy and would force a woman to undergo an abortion method more dangerous to her health. Id. at 77-79, 96 S.Ct. at 2844-46. Although Roe’s second trimester standard allowed for fewer constitutional abortion regulations than does Casey’s undue burden standard, it follows that a statute which bans a common abortion procedure would constitute an undue burden. An abortion regulation that inhibits the vast majority of second trimester abortions would clearly have the effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion. Therefore, the Court’s analysis in Dan-forth is consistent with Casey’s undue burden standard and thus provides us with some guidance in this matter. Because the definition of the banned procedure includes the D & E procedure, the most common method of abortion in the second trimester, the Act’s prohibition on the D & X procedure has the effect “of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877, 112 S.Ct. at 2820. It does not matter that the D & E procedure typically is not performed late in the second trimester, when use of the D & X procedure is more common, because the State may prosecute physicians who perform the D & E procedure at any time under the Act’s definition of the banned procedure, which contains no temporal limitations. In other words, the definition of the banned procedure in no way limits its application to late second trimester abortions. As in Danforth, the Act bans the most commonly used second trimester procedure and therefore" }, { "docid": "13968583", "title": "", "text": "the preservation of the life or health of the mother. (Citations and footnote omitted.) In light of the mandate of the Supreme Court, we will now consider the challenged provisions of the abortion statutes and regulations. A. The definition of viability. After reviewing the medical, legal and philosophical historical attitudes towards abortions, the Court in Roe stated: Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. Roe v. Wade, supra, 410 U.S. at 160, 93 S.Ct. at 730. However, a statutory definition need not place viability at a specific point in the gestation period. A definition of viability in terms of potential ability to survive outside the womb, albeit with artificial aid, was found to be sufficient in Planned Parenthood of Central Missouri v. Danforth, supra,--U.S. at -, 96 S.Ct. 2831. The Minnesota abortion law, however, goes a step further and incorporates the concept of “potential viability” into the definition of viability: ‘Viable’ means able to live outside the womb even though artificial aid may be required. During the second half of its gestation period a fetus shall be considered potentially ‘viable’. Minn.Stat. § 145.411, subd. 2. The District Court reasoned that including the term “potentially viable” in the definition of “viable” had the effect of establishing a presumption that viability occurred at the end of the twentieth week. It held that this was inconsistent with the Supreme Court decisions in Roe v. Wade, supra, and Doe v. Bolton, supra, which place the earliest point of viability at the twenty-fourth week. In support of its position, it cited an absence of evidence to support the state’s determination that viability occurs at twenty weeks, and the fact that the decision as to whether or not a particular fetus is viable must be left to the medical judgment of the physician because the point of viability will vary from case to case. Hodgson v. Anderson, supra at 1016. This holding was cited with approval by the Supreme Court in Planned Parenthood of Central Missouri v. Danforth, supra, - U.S. at- n.5, 96 S.Ct." }, { "docid": "23345966", "title": "", "text": "U.S. at 76, 96 S.Ct. at 2844-45. If there is any doubt as to the constitutionality of Ohio’s D & X ban standing by itself, it is resolved by the fact that the Ohio statute provides for an affirmative defense to liability for situations in which all other available abortion procedures pose a greater danger to the mother’s health. It thus eliminates any concern that the law might restrict a woman’s access to the D & X procedure in those actual circumstances where other procedures are not as safe. The fact that this exception is an affirmative defense does not undermine its constitutionality. See Simopoulos v. Virginia, 462 U.S. 506, 510, 103 S.Ct. 2532, 2535-36, 76 L.Ed.2d 755 (1983) (abortion statute was not unconstitutionally applied to a physician on the asserted ground that the state failed to prove the lack of medical necessity for a second-trimester abortion since, under state law, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until defendant invoked medical necessity as a defense). The majority’s offhand dismissal of the significance of the affirmative defense provision, see supra at 200-01, is especially puzzling given the Supreme Court’s repeated endorsement of criminal statutes placing the burden of raising a particular affirmative defense on the defendant. See, e.g., Engle v. Isaac, 456 U.S. 107, 120-21, and n. 20, 102 S.Ct. 1558, 1568 and n. 20, 71 L.Ed.2d 783 (1982); Mullaney v. Wilbur, 421 U.S. 684, 701-03, nn. 28, 30, 31, 95 S.Ct. 1881, 1891-92, nn. 28, 30, 31, 44 L.Ed.2d 508 (1975). I believe that the majority, in dismissing the importance of the affirmative defense provision in the statute, has erroneously focused on an extreme case, accepting plaintiffs’ argument that women would be required to bear an increased medical risk because the fear of prosecution will spur physicians to use alternative procedures even when the D & X procedure is the safest method. Such an extreme example, however, obscures the reality that all criminal laws chill conduct that is at the margins of legality. In any event, it is inappropriate for the" }, { "docid": "13968582", "title": "", "text": "govern the abortion decision.” Id. at 154, 93 S.Ct. at 727. In Planned Parenthood of Central Missouri v. Danforth, supra,-U.S. at---, 96 S.Ct. at 2837, the Court restated the conclusion of Roe: [T]he permissibility of state regulation was to be viewed in three stages: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” without interference from the State.' The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (Citations and footnote omitted.) In light of the mandate of the Supreme Court, we will now consider the challenged provisions of the abortion statutes and regulations. A. The definition of viability. After reviewing the medical, legal and philosophical historical attitudes towards abortions, the Court in Roe stated: Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. Roe v. Wade, supra, 410 U.S. at 160, 93 S.Ct. at 730. However, a statutory definition need not place viability at a specific point in the gestation period. A definition of viability in terms of potential ability to survive outside the womb, albeit with artificial aid, was found to be sufficient in Planned Parenthood of Central Missouri v. Danforth, supra,--U.S. at -, 96 S.Ct. 2831. The Minnesota abortion law, however, goes a step further and incorporates the concept of “potential viability” into the definition of viability: ‘Viable’ means able to live outside the womb even though artificial aid may be" }, { "docid": "3962738", "title": "", "text": "woman has a Fourteenth Amendment right to terminate a pre-via-bility pregnancy, “and to obtain it without undue interference from the State.” Casey, 505 U.S. at 846, 112 S.Ct. 2791. However, this right is not absolute, and the state may express its interest in potential life by regulating abortions, so long as the regulations do not pose an “undue burden” on a woman’s ability to seek an abortion before the fetus attains viability. Id. at 874, 112 S.Ct. 2791. Although the state may ensure that the woman’s choice is informed, and protect the health and safety of a woman seeking an abortion, the state may not prohibit a woman from making the “ultimate decision” to undergo an abortion. Id. at 878-79, 112 S.Ct. 2791. 1. Standard of Review We review de novo a district court’s grant of summary judgment. Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir.1997). “[A] facial challenge to an abortion statute will succeed where, in a large fraction of the cases in which the statute is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Wasden, 376 F.3d at 921 (internal quotation marks, brackets, and citation omitted). And the “large fraction” is computed by focusing on “those upon whom a challenged law would have some actual effect, rather than all women ... seeking an abortion.” Id. There is also a heightened need for definiteness “when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights.” Nunez, 114 F.3d at 940. 2. Section 18-505 is facially unconstitutional because it categorically bans some abortions before viability. Section 18-505 prohibits abortions of fetuses of twenty or more weeks post-fertilization. The twenty-week ban applies regardless of whether the fetus has attained viability. The Supreme Court reaffirmed in Casey that an undue burden exists if the purpose or effect of a provision of law places a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability. Casey, 505 U.S. at 846, 112 S.Ct. 2791. In Planned Parenthood of Cent. Mo. v. Danforth, 428" }, { "docid": "16450057", "title": "", "text": "e.g., State v. Ashley, 701 So.2d 338, 340 (Fla. 1997) (holding that a woman possessed immunity from criminal prosecution \"for causing injury or death to [her] fetus”); State v. Aiwohi, 109 Hawai’i 115, 123 P.3d 1210, 1224 (2005) (holding that, the definition of \"person” in the Hawaii manslaughter statute did not include a fetus, and thus did not apply when a woman caused the death of her fetus by smoking crystal methamphetamine); Hill-man v. State, 232 Ga.App. 741, 503 S.E.24 610, 611 (1998) (holding that the Georgia criminal abortion statute does not criminalize a pregnant woman’s actions in securing an abortion, regardless of the means used); State v. Barnett, 249 Or. 226, 437 P.2d 821, 822 (1968) (recognizing that a reading of the Oregon criminal statute \"indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her”). Although these cases generally find that a woman cannot be held criminally liable, their decisions rest primarily on the state court’s interpretation of state criminal law, and they did not involve an \"undue burden” analysis. . Casey recognized \"the right of the woman to choose to have an abortion before viability and to obtain it without interference from the State.” 505 U.S. at 846, 112 S.Ct. 2791. Viability, according to Roe, “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe, 410 U.S. at 160, 93 S.Ct. 705. Viability is a critical stage in a pregnancy because it is at that time that \"the fetus then presumably has the capability of meaningful life outside the mother's womb.” Id. at 163, 93 S.Ct. 705. Subsequent to Roe, the Court in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 63-64, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), affirmed that view but clarified that viability is \"flexible]” and ultimately a \"matter of medical judgment, skill, and technical ability.” This is because the \"time when viability is achieved may vary with each pregnancy,” and thus, a \"determination of whether a particular fetus is viable is, and must be," }, { "docid": "3962739", "title": "", "text": "operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Wasden, 376 F.3d at 921 (internal quotation marks, brackets, and citation omitted). And the “large fraction” is computed by focusing on “those upon whom a challenged law would have some actual effect, rather than all women ... seeking an abortion.” Id. There is also a heightened need for definiteness “when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights.” Nunez, 114 F.3d at 940. 2. Section 18-505 is facially unconstitutional because it categorically bans some abortions before viability. Section 18-505 prohibits abortions of fetuses of twenty or more weeks post-fertilization. The twenty-week ban applies regardless of whether the fetus has attained viability. The Supreme Court reaffirmed in Casey that an undue burden exists if the purpose or effect of a provision of law places a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability. Casey, 505 U.S. at 846, 112 S.Ct. 2791. In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Court further explained that “it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period.” Because § 18-505 places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional. We also recently held unconstitutional an Arizona law banning abortions after the twenty week gestational age because the law operated as a ban on a woman’s constitutional right a to pre-viability abortion. Isaacson v. Home, 716 F.3d 1213, 1225-1227 (9th Cir.2013). Prosecuting Attorney Herzog concedes that “[n]o dispute exists that medical induction abortions can occur between the twentieth week of pregnancy and fetal viability.” Yet Herzog attempts to reframe the issue as whether the statute imposes an undue burden on Dr. Hearn’s proposed plan to provide medical abortions in the patient’s home after the twentieth week of pregnancy. Although Dr. Hearn’s proposed plan would be detrimentally affected by the enforcement of § 18-505," }, { "docid": "5067169", "title": "", "text": "and parental consent respectively. They are substantially similar to provisions stricken by the Court in Danforth. Based on that decision, defendants have conceded that both are unconstitutional. We agree and hold that these provisions of the Act are unconstitutional. D. Regulations on Second Trimester Abortions Plaintiffs next contend that § 4 is unconstitutional. This section provides that no abortion shall be performed after the first trimester unless the requirements of § 3 are met and “the abortion is performed in a hospital, on an inpatient basis, with measures for life support for the fetus which must be available and utilized, if there is any clearly visible evidence of viability.” First, plaintiffs assert that § 4 is unconstitutional because it incorporates the invalid provisions of § 3 and the invalid definition of viability in § 2(2). For the reasons stated in Part II-B. and C., supra, we have concluded that §§ 3(2)(a), 3(2)(b), 3(3), and 3(4) are unconstitutional. Section 4 must be interpreted as incorporating only the constitutional portions of § 3 and the constitutionally permissible definition of viability in § 2(2). If § 4 is so interpreted, plaintiffs’ invalid incorporation argument is without merit. Plaintiffs also argue that the requirement of hospitalization and the need to have certain equipment available are not rationally related to maternal health and impose an extra layer of regulation not applicable to any other medical procedure. They also claim that a physician would face criminal prosecution if he or she performed an emergency abortion outside a hospital after the first trimester. In Wade, supra, the Court held that after the first trimester, the state may regulate abortions in ways that are reasonably related to maternal health. The Court specifically stated that the state may require that abortions after the first trimester be performed in hospitals. Id. 410 U.S. at 163, 93 S.Ct. 705. Since this regulation is not unconstitutional, the incremental burden of having life saving equipment available for the fetus, should there be evidence of viability, is not overly burdensome. Finally, plaintiffs’ apprehension that § 4 might inhibit emergency abortions is entirely speculative. None" }, { "docid": "21905256", "title": "", "text": "began, this was included on the instruction sheet. Id., at 200. P. M. went to a motel. Alone, she aborted her fetus in the motel bathroom 48 hours after the saline injection. She left the fetus, followup instructions, and pain medication in the wastebasket at the motel. Her boyfriend took her home. Police found the fetus later that day and began an investigation. Appellant was indicted for unlawfully performing an abortion during the second trimester of pregnancy outside of a licensed hospital and was convicted by the Circuit Court of Fair-fax County sitting without a jury. The Supreme Court of Virginia unanimously affirmed the conviction. 221 Va. 1059, 277 S. E. 2d 194 (1981). This appeal followed. We noted probable jurisdiction, 456 U. S. 988, and now affirm. h-1 HH Appellant raises two issues that do not require extended treatment. He first contends that Va. Code § 18.2-71 (1982) was applied unconstitutionally to him, because lack of medical necessity for the abortion was not alleged in the indictment, addressed in the prosecution’s case, or mentioned by the trier of fact. Appellant contends that this failure renders his conviction unconstitutional for two reasons: (i) the State failed to meet its burden of alleging necessity in the indictment, as required by United States v. Vuitch, 402 U. S. 62 (1971); and (ii) the prosecution failed to meet its burden of persuasion, as required by Patterson v. New York, 432 U. S. 197 (1977). The authoritative construction of § 18.2-71 by the Supreme Court of Virginia makes it clear that, at least with respect to the defense of medical necessity, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. See 221 Va., at 1069, 277 S. E. 2d, at 200. Appellant’s reliance on Vuitch thus is misplaced: the District of Columbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See 402 U. S., at 70. Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally" }, { "docid": "17052565", "title": "", "text": "trimester” approach from Roe and replaced it with a constitutional line drawn at viability. Id. at 870-74,112 S.Ct. 2791. Before viability, the Court held, a state may regulate abortion as long as it does not impose an “undue burden” on a woman’s right to terminate her pregnancy. Id. at 876, 112 S.Ct. 2791. After viability, a state may regulate and even prohibit abortion “ ‘except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” Id. at 879, 112 S.Ct. 2791 (quoting Roe, 410 U.S. at 164-65, 93 S.Ct. 705). According to Casey, an “undue burden” exists when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” 505 U.S. at 877, 112 S.Ct. 2791 (emphasis added). The Court applied its “undue burden” standard to the Pennsylvania statute, beginning with the provision that exempted women from compliance with the various regulations in the event of a “medical emergency.” Id. at 879-80,112 S.Ct. 2791. Pennsylvania defined a “medical emergency” as: that condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. Id. at 879, 112 S.Ct. 2791 (internal quotation marks and citation omitted). The plaintiffs in Casey challenged this definition as being too narrow, because “it forecloses the possibility of an immediate abortion despite some significant health risks.” Id. at 880, 112 S.Ct. 2791. Thus, the pertinent interpretive question in Casey was whether the definition of “medical emergency” encompassed certain specified “conditions [that] could lead to an illness with substantial and irreversible consequences.” Id. These “conditions” included physical, pregnancy-related conditions such as preeclampsia, inevitable abortion, and premature ruptured membrane. Id. The Court focused on the fact that, at the appellate level, the Third Circuit had construed the term “serious risk” to mean" }, { "docid": "23345965", "title": "", "text": "be upheld only if based on the health interests of the mother. As the majority acknowledges, see supra at 192, Casey did away with the trimester framework, focusing instead on whether the regulation posed an “undue burden” on the woman’s right to choose an abortion. See Casey, 505 U.S. at 880, 112 S.Ct. at 2822. The plurality opinion also emphasized the need to give more weight to a state’s asserted interest in the potentiality of life. See id. at 875, 112 S.Ct. at 2819-20 (“Not all governmental intrusion is necessarily unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe’s terms, in practice it undervalues the State’s interest in the potential life within the woman.”). Therefore, given this new framework, a finding that a procedure is simply “safer” in some instances is not sufficient. Rather, the district court would need to have found that the D & X method is the safer procedure in most circumstances, especially when confronted with such a rarely used procedure. See Danforth, 428 U.S. at 76, 96 S.Ct. at 2844-45. If there is any doubt as to the constitutionality of Ohio’s D & X ban standing by itself, it is resolved by the fact that the Ohio statute provides for an affirmative defense to liability for situations in which all other available abortion procedures pose a greater danger to the mother’s health. It thus eliminates any concern that the law might restrict a woman’s access to the D & X procedure in those actual circumstances where other procedures are not as safe. The fact that this exception is an affirmative defense does not undermine its constitutionality. See Simopoulos v. Virginia, 462 U.S. 506, 510, 103 S.Ct. 2532, 2535-36, 76 L.Ed.2d 755 (1983) (abortion statute was not unconstitutionally applied to a physician on the asserted ground that the state failed to prove the lack of medical necessity for a second-trimester abortion since, under state law, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until defendant invoked medical necessity as a defense). The" }, { "docid": "23345936", "title": "", "text": "path of a woman seeking an abortion. See 505 U.S. at 880, 112 S.Ct. at 2822 (“[A]s construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman’s abortion right.”). Importantly, a woman would still be free to choose to have an abortion. Although the State may prohibit post-viability abortions— i.e., the undue burden standard is inapplicable — it must continue to permit abortions “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 879, 112 S.Ct. at 2821. Therefore, we reject defendants’ reliance on Casey for support of its argument that the Act’s medical necessity exception is constitutional. Determining whether a maternal health exception is constitutional when it is limited to physical health problems depends upon what the Supreme Court means by “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” At least two Supreme Court cases address some of the words in this phrase. The main case, and the one upon which the District Court relied, is Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), which was decided the same day as Roe, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. In Doe, the plaintiffs challenged the constitutionality of a Georgia statute which made it a crime for a physician to perform an abortion except when it was “based upon his best clinical judgment that an abortion is necessary.” Doe, 410 U.S. at 202, 93 S.Ct. 739, 35 L.Ed.2d 201. The plaintiffs argued that the word “necessary” was unconstitutionally vague because it did not warn physicians of what conduct was proscribed. Id. The Court found that United States v. Vuitch, 402 U.S. 62, 71-72, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601 (1971) controlled. Id. at 191-92, 93 S.Ct. at 747-48. In Vuitch, a vagueness issue was raised with respect to a statute which made abortions criminal “unless the same were done as necessary for the preservation of the mother’s life or health.” Id. at 191, 93 S.Ct. at" }, { "docid": "9796760", "title": "", "text": "any abortion procedure the physician performing the procedure does so knowing, and with the purpose, that the procedure will kill the fetus. The language of LB 23 describes a method of abortion that includes the D&E procedure, and the intent requirement of the statute does not work to protect physicians who perform the D&E procedure from violating the statute LB 23 not only prohibits the D&X procedure, but the D&E procedure as well. V. Having determined that LB 23 bans the D&E procedure, we turn now to the question of whether such a ban imposes an undue burden on women seeking second-trimester abortions. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court held unconstitutional a statute proscribing the use of saline amniocentesis as a method of abortion. Saline amniocentesis was then the most commonly used procedure for abortions performed after the first trimester. Id. at 78, 96 S.Ct. 2831. By prohibiting the use of the procedure, the statute would effectively inhibit the vast majority of abortions performed after the first trimester. Id. at 79, 96 S.Ct. 2831. Danforth was decided under the trimester framework of Roe. Although Casey changed that framework, the ban in Danforth meets the undue-burden standard of Casey. See Voinovich, 130 F.3d at 201: “An abortion regulation that inhibits the vast majority of second trimester abortions would clearly have the effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion.” LB 23 does not limit all second-trimester abortions. It does, however, prohibit the most common procedure for second-trimester abortions and, in doing so, imposes an undue burden on a woman’s right to choose to have an abortion. VI. In its final argument, the State suggests that Roe and Casey do not apply to LB 23 because Roe and Casey apply only to the “unborn” and do not prohibit states from protecting partially born human beings. The State argues that “the Supreme Court has left protection in place for the partially born.” Appellant’s Br. 71. The State also suggests" }, { "docid": "13694007", "title": "", "text": "505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). An “undue burden” can arise in two circumstances; that is, one examines the “purpose” and “effect” of the law. If the legislature intended to place a substantial obstacle in the path of a woman seeking an abortion, then an undue burden exists. Id. at 877, 112 S.Ct. 2791. If the effect of the law is to place a substantial obstacle in the path of a woman seeking an abortion, then an “undue burden” has been proven. Id. It is beyond dispute that “[unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden.” Id. at 878, 112 S.Ct. 2791. The Supreme Court and lower federal courts have consistently held that abortion regulations that impose medically unnecessary health risks on women are invalid. See, e.g., Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 768, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (state law not susceptible to construction that did not “ ‘require the mother to bear an increased medical risk in order to save her viable fetus’” was unconstitutional) (citation omitted) ; Colautti v. Franklin, 439 U.S. 379, 400, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (state law requiring a doctor to use the technique that provided the best opportunity for the viable fetus to be aborted alive was unconstitutional because it was uncertain whether the law permitted “the physician to consider his duty to the patient to be paramount to his duty to the fetus”); Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (state law that “forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed” was unconstitutional); Jane L. v. Bangerter, 102 F.3d 1112, 1118 n. 7 (10th Cir.1996), cert. denied sub nom. Leavitt v. Jane L., — U.S. -, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997) (Utah’s choice of method statute was unconstitutional because “‘by requiring a woman to suffer “grave" }, { "docid": "23345912", "title": "", "text": "in Dan-forth is consistent with Casey’s undue burden standard and thus provides us with some guidance in this matter. Because the definition of the banned procedure includes the D & E procedure, the most common method of abortion in the second trimester, the Act’s prohibition on the D & X procedure has the effect “of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877, 112 S.Ct. at 2820. It does not matter that the D & E procedure typically is not performed late in the second trimester, when use of the D & X procedure is more common, because the State may prosecute physicians who perform the D & E procedure at any time under the Act’s definition of the banned procedure, which contains no temporal limitations. In other words, the definition of the banned procedure in no way limits its application to late second trimester abortions. As in Danforth, the Act bans the most commonly used second trimester procedure and therefore is an unconstitutional burden on a woman’s right to choose to have an abortion. Appellants argue that the affirmative defense provision eliminates any concern that the ban might restrict a woman’s access to a D & X procedure in circumstances where other procedures are not safe. The Act provides as an affirmative defense that a charged physician may present prima facie evidence that all other abortion procedures would pose a greater risk to the health of the pregnant woman than the risk posed by the D & X procedure. See Ohio Rev.Code ann. § 2919.15(C). This affirmative defense does not affect our analysis, however. The undue burden posed by the Act lies in the fact that the Act bans the most common second trimester procedure. The affirmative defense does not effectively remove that obstacle. 4. Post-Viability Application of the Ban The undue burden standard applies only to pre-viability abortion regulations. See Casey, 505 U.S. at 877, 112 S.Ct. at 2820 (“A finding of an undue burden is a shorthand for the conclusion that a state" }, { "docid": "21905257", "title": "", "text": "by the trier of fact. Appellant contends that this failure renders his conviction unconstitutional for two reasons: (i) the State failed to meet its burden of alleging necessity in the indictment, as required by United States v. Vuitch, 402 U. S. 62 (1971); and (ii) the prosecution failed to meet its burden of persuasion, as required by Patterson v. New York, 432 U. S. 197 (1977). The authoritative construction of § 18.2-71 by the Supreme Court of Virginia makes it clear that, at least with respect to the defense of medical necessity, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. See 221 Va., at 1069, 277 S. E. 2d, at 200. Appellant’s reliance on Vuitch thus is misplaced: the District of Columbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See 402 U. S., at 70. Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally permissible. See Engle v. Isaac, 456 U. S. 107, 120-121, and n. 20 (1982); Mullaney v. Wilbur, 421 U. S. 684, 701-703, nn. 28, 30, 31 (1975). Appellant also contends that the prosecution failed to prove that his acts in fact caused the death of the fetus. In view of the undisputed facts proved at trial, summarized above, this contention is meritless. See 221 Va., at 1069-1070, 277 S. E. 2d, at 200-201. r-H H-i I — < We consistently have recognized and reaffirm today that a State has an “important and legitimate interest in the health of the mother” that becomes “‘compelling’ ... at approximately the end of the first trimester.” Roe v. Wade, 410 U. S. 113, 163 (1973). See City of Akron, ante, at 428. This interest embraces the facilities and circumstances in which abortions are performed. See 410 U. S., at 150. Appellant argues, however, that Virginia prohibits all nonhospital second-trimester abortions and that such a requirement imposes an unconstitutional burden on the right of privacy. In City of Akron and" }, { "docid": "22730251", "title": "", "text": "word “indefinitely,” and to the extra burden of regulation imposed. It is suggested that the definition expands the Court's definition of viability, as expressed in Roe, and amounts to a legislative determination of what is properly a matter for medical judgment. It is said that the “mere possibility of momentary survival is not the medical standard of viability.” Brief for Appellants 67. In Roe, we used the term “viable,” properly we thought, to signify the point at which the fetus is “potentially able to live outside the mother's womb, albeit with artificial aid,” and presumably capable of “meaningful life outside the mother’s womb,” 410 U. S., at 160, 163. We noted that this point “is usually placed” at about seven months or 28 weeks, but may occur earlier. Id., at 160. We agree with the District Court and conclude that the definition of viability in the Act does not conflict with what was said and held in Roe. In fact, we believe that § 2 (2), even when read in conjunction with § 5 (proscribing an abortion “not necessary to preserve the life or health of the mother . . . unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable”); the constitutionality of which is not explicitly challenged here, reflects an attempt on the part of the Missouri General Assembly to comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no particular difficulty with the statutory definition. As noted above, we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term. Section 2 (2) does the same. Indeed, one might argue, as the appellees do, that the presence of the statute’s words “continued indefinitely” favor, rather than disfavor, the appellants, for, arguably, the point when life can be “continued indefinitely outside the womb” may well occur later in pregnancy than the point where the fetus is “potentially able to live outside the mother’s womb.” Roe v. Wade, 410 U. S., at 160." }, { "docid": "23345930", "title": "", "text": "emergency. In other words, if a physician were performing a non-abortion operative procedure on a woman and accidentally caused the fetus to be aborted, the physician would not violate the Act. The problem here is that the Act does not require scienter in the physician’s determination of medical necessity and medical emergency. Appellants’ argument therefore has no merit. Thus, we conclude that the medical emergency and medical necessity exceptions are unconstitutional. Accordingly, we hold unconstitutional the Act’s post-viability ban and regulations. While we need not consider the eonstitutionality of the other post-viability abortion regulations, because their validity depends upon the constitutionality of the provisions, we do address the lack of mental health exception for postviability since it was extensively briefed and argued. Further, if the statute is amended to meet the deficiencies found here, this issue will still remain. The District Court also held the statute unconstitutional in that it made no provision for post-viability abortions where there was serious risk of the substantial and irreversible impairment of the pregnant woman’s mental health. The medical necessity exception to the post-viability abortion ban provides that an abortion may be performed in order to avert the death of the pregnant woman, or to avoid a “serious risk of the substantial and irreversible impairment of a major bodily function.” See Ohio Rev.Code Ann. §§ 2919.16(F), 2919.17(A)(1). The statute defines a “serious risk of the substantial and irreversible impairment of a major bodily function” as follows: [A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) Pre-eclampsia; (2) Inevitable abortion; (3) Prematurely ruptured membrane; (4) Diabetes; (5) Multiple sclerosis. Id. § 2919.16(J). On its face, this definition appears to be limited to physical health risks, as opposed to mental health risks. Indeed, defendants asserted at oral argument that the definition should be construed as limited to physical health conditions. In the Act, the General Assembly declared that, in using the phrase “serious risk of the substantial and" }, { "docid": "5535117", "title": "", "text": "term’s ordinary meaning.” Id. at 942-43, 120 S.Ct. 2597 (citing Meese v. Keene, 481 U.S. 465, 484-85, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987)); see also Richmond Medical Center v. Hicks, 301 F.Supp.2d 499, 515 (E.D.Va.2004) (Virginia law posed an undue burden despite fact that it explicitly excepted from coverage “the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother where plain language of the Act [nevertheless] ban[ned] pre-viability D & Es and would cause those who perform such D & Es to fear prosecution, conviction, and imprisonment”). Here, for the reasons discussed above, the Act’s statutory definition casts a net wider than intact D & Es, and may include other previability abortion procedures, including D & Es by disarticulation, inductions, and treatment of spontaneous miscarriages. However, even if this court were to find that linguistic differences in the Act make it less likely that the Act encompasses D & E by disarticulation procedures as did the Nebraska statute in Stenberg, this court nevertheless concludes that the Act is unduly burdensome because, even assuming that the Act covers only the intact D & E procedure, the Act does not distinguish between previability and postviability in violation of Roe and Casey. See Stenberg, 530 U.S. at 930, 120 S.Ct. 2597 (the government’s “interest in regulating abortion previability is considerably weaker than postviability”). To the extent that a woman seeks or requires an intact D & E abortion prior to viability, this Act would undoubtedly place a substantial obstacle in her path and decision. For the reasons stated above, the court finds that the Act is unconstitutional. III. CONSTITUTIONAL VAGUENESS A. Parties’ Positions Plaintiffs next challenge the Act on the ground that it is void for vagueness, in violation of the Due Process Clause, because the Act fails to clearly define the prohibited medical procedures and does not use terminology that is recognized in the medical community. Therefore, according to plaintiffs, it deprives physicians of fair notice and encourages arbitrary enforcement. The government, however, contends that the inclusion of scienter requirements in" } ]

[ { "docid": "6611418", "title": "", "text": "machine guns: the term “machine gun” is defined as either a weapon that fires repeatedly on a single trigger pull or as a part or parts designed to convert a manually firing weapon into a machine gun. 26 U.S.C. § 5845(b). The Bureau of Alcohol, Tobacco, and Firearms has interpreted § 922(o) to ban private possession or transfer of new machine guns not lawfully possessed before the statute’s effective date, and therefore the Bureau will not approve applications to register new weapons because to do so would place the applicant in violation of the law. 27 C.F.R. § 179.105; see also Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990) (agreeing with this interpretation of § 922(o)), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Section 922(o), then, effectively freezes the number of legal machine guns in private hands at its 1986 level. As the Tenth Circuit noted in United States v. Wilks, 58 F.3d 1518 (10th Cir.1995), Congress enacted § 922(o) with little discussion: “The scant legislative history merely contains a discussion of an earlier bill proposed in the House of Representatives which ‘prohibited the transfer and possession of machine guns, used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime.’ ” Id. at 1519 (quoting H.R.Rep. No. 495, 99th Cong., 2d Sess. 4 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1330). The only explanation supplied for the last-minute amendment that was later enacted was “the statement of its sponsor, Representative Hughes, that T do not know why anyone would object to the banning of machine guns.’ ” Id. (quoting 132 Cong. Rec. H1750 (1986) (statement of Rep. Hughes)); see also Farmer, 907 F.2d at 1044-45; David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 Cumb. L.Rev. 585, 670-71 (1987). The standard of Commerce Clause review is narrow and deferential. “Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. This power is ‘complete in itself, may be exercised to" } ]

[ { "docid": "1458976", "title": "", "text": "a jurisdictional component that would protect that statute from a Commerce Clause challenge. See Lopez, 514 U.S. at 562, 115 S.Ct. 1624. Similarly, in Morrison, the Court noted that § 13981 of the VAWA “contains no jurisdictional element establishing that the federal cause of action in pursuance of Congress’ power to regulate interstate commerce,” but explained approvingly that the Courts of Appeals have uniformly upheld a separate section of the VAWA that contains a limiting jurisdictional element. Morrison, 120 S.Ct. at 1751-52. To convict under § 2119, the jurisdictional element requires the government to prove that the stolen vehicle had traveled in interstate commerce at some time. The government showed that the stolen Pontiac in this case was manufactured in Kansas, sold across state lines and eventually stolen in Indiana. As we explained in United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995), “the mere movement of [the object of regulation], at some time, across state lines satisfied the commerce element.” Accordingly, we have held that the inclusion of a jurisdictional element in 18 U.S.C. § 922(g)(1), which required that a weapon.must have traveled in interstate commerce to be subject to the statute, was sufficient under Lopez to satisfy the Commerce Clause, at least when coupled with express congressional findings showing that the regulated activity substantially affected interstate commerce. See Bell, 70 F.3d at 498; see also United States v. Kenney, 91 F.3d 884, 886 (7th Cir.1996). Repeatedly since Lopez we have held that a jurisdictional element ensures sufficient nexus with interstate commerce to withstand Commerce Clause challenges. See Gillespie v. City of Indianapolis, 185 F.3d 693, 704-05 (7th Cir.1999) (18 U.S.C. § 922(g)(9)); United States v. Wilson, 159 F.3d 280, 285-87 (7th Cir.1998) (18 U.S.C. § 922(g)(8)); United States v. Hardy, 120 F.3d 76, 77 (7th Cir.1997) (18 U.S.C. § 922(u)). The government’s showing that the stolen Pontiac had traveled in interstate commerce established the necessary nexus to interstate commerce under the Commerce Clause. C. Jury Instruction Omission for Serious Bodily Injury Count One of Taylor’s indictment alleges that he violated subsection two of 18 U.S.C. § 2119," }, { "docid": "23174416", "title": "", "text": "115 S.Ct. at 1631. Such an element is conspicuously present here, for the CSRA by its terms provides that jurisdiction will attach only if child support obligations cross state lines. See 18 U.S.C. § 228(a); see also H.R.Rep. No. 102-771, supra, at 6 (underscoring that Congress designed the statute “to target interstate cases only”). We have found the presence of such a jurisdictional element to be a powerful argument for distinguishing Lopez in other cases, see, e.g., United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.1996) (upholding federal arson statute, 18 U.S.C. § 844(i)); United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir.1995) (upholding a federal firearms possession statute, 18 U.S.C. § 922(k)), and it is equally potent here. C. The Tenth Amendment. Bongiomo next claims that the CSRA violates the Tenth Amendment (and, in the bargain, tramples principles of federalism and comity). This claim hinges on his contention that the CSRA falls beyond Congress’ competence because it concerns domestic relations (an area traditionally within the states’ domain). We reject the claim out of hand. The Tenth Amendment declares that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. The amendment is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power. See New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 2417-18, 120 L.Ed.2d 120 (1992). Inasmuch as Congress passed the CSRA pursuant to the valid exercise of such an enumerated power (the power to regulate interstate commerce), that tenet governs here. Accord Hampshire, 95 F.3d at 1004; Mussari, 95 F.3d at 791. What is more, a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the “States as States,” (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability “to structure integral operations in areas of traditional governmental functions.” Hodel v." }, { "docid": "8877489", "title": "", "text": "“things in interstate commerce.” The court observed that, like narcotics, machine guns are items “which flow across state lines for profit by business entities and hamper local and state law enforcement efforts.” Id. at 785. That court relied on the Tenth Circuit’s earlier decision in United States v. Wilks, 58 F.3d 1518 (10th Cir.1995), which had upheld § 922(o) under the second commerce category. The Wilks court characterized machine guns as commodities “bound up with interstate attributes” and thus readily distinguished from the “purely intrastate” objects of § 922(q)’s prohibition. Id. at 1521. The court observed that § 922(o) was “consistent” with earlier firearms legislation “because it merely regulates the movement of a particular firearm in interstate commerce,” id. at 1521 n. 4, surveyed prior congressional findings concerning the interstate flow of weapons and its attendant dangers, and concluded that § 922(o) represented a valid attempt to control the interstate movement in machine guns, id. at 1521-22. Whatever the category relied on, it is telling that each of our sister circuits has found that the regulation of machine gun transfer and possession comes within Congress’ power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, “[i]t appears that United States v. Lopez has raised many false hopes,” and that challenges based on Lopez “[a]lmost invariably” fail. See, e.g., United States v. Orozco, 98 F.3d 105 (3d Cir.1996) (rejecting challenge based on Lopez to Drug-Free School Zones Act, 21 U.S.C. § 860(a)); United States v. Bishop, 66 F.3d 569 (3d Cir.1995) (rejecting challenge to car-jacking statute). Finally, we deal with Rybar’s argument that § 922(o) is deficient because it lacks a “jurisdictional element,” the term used to refer to a statutory clause (such as “in or affecting interstate commerce”) that limits application of the statute to those instances where the particular machine gun transfer or possession is shown to be related to interstate commerce. Although the Lopez Court noted the lack of a jurisdictional element in § 922(q) and observed that such" }, { "docid": "8678378", "title": "", "text": "his sentence, and REMAND for resentencing. . In the alternative, Wright requested a jury instruction on his Second Amendment defense. Because we conclude that Wright can claim no Second Amendment protection, we find no error in the denial of his request for a jury instruction on this issue. . Wright admitted that this military group was not in any way affiliated with the government of the State of Georgia. . “Machinegun” is defined under the statute as: any weapon which shoots, is designed to shoot, or can be readily stored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. 18 U.S.C. § 921(a)(23); 26 U.S.C. § 5845(b). .Wright also claims that § 922(o) violates the Tenth Amendment. Because we conclude that Congress had sufficient authority under the Commerce Clause to enact § 922(o), we need not address his Tenth Amendment challenge. When Congress acts within its power under the Commerce Clause, then the \"Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U.S. 144, 153, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992). . Section 922(o) was enacted in 1986 as part of the Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Slat. 449. The only apparent explanation in the legislative record for the enactment of § 922(d) was the statement of its sponsor, Representative Hughes: “I do not know why anyone would object to the banning of machine-guns.” 132 Cong. Rec. H1750 (daily ed. April 10, 1986). Several courts have relied on congressional findings issued pursuant to the enactment of prior gun control legislation, namely the Omnibus Crime Control Act and Safe Streets Act, Pub.L. No. 90-351, 82 Stat." }, { "docid": "7769734", "title": "", "text": "a weapon, at some time, across state lines satisfied the commerce element of § 922(g)(1). Our question boils down to whether Lopez casts doubt on Scarborough and Lowe, and whether under the Lopez analysis, § 922(g)(1) exceeds congressional power under the Commerce Clause. In Lopez, the Court determined that in enacting 18 U.S.C. § 922(q), the Gun-Free School Zones Act, Congress had exceeded the “outer limits” of its power under the Commerce Clause. Under the clause, Congress can regulate, the court recounted, three broad categories of activity: the use of the channels of interstate commerce; the instrumentalities of interstate commerce and persons and things in interstate commerce; and activities having a substantial relation to interstate commerce. The latter was the only possible justification for § 922(q). The Gun-Free School Zone Act failed to survive the constitutional challenge because it was not an essential part of a larger regulation of economic activity and it did not contain a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Lopez, — U.S. at -, 115 S.Ct. at 1631. The statute also did not contain congressional findings which would, the Court said, enable them “to evaluate the legislative judgment that the activity in question substantially affected interstate commerce____” — U.S. at-, 115 S.Ct. at 1632. Section 922(g)(1) does not suffer from the same infirmities. It contains an explicit requirement that a nexus to interstate commerce be established. It makes it unlawful for a felon “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm____” Had Mr. Bell gone to trial, the government would have been required to prove that the weapon he sold to the undercover agent had traveled in interstate commerce. In other words, to secure a conviction under § 922(g)(1) the government had to prove exactly what Lopez found missing under § 922(q). Because Mr. Bell entered a guilty plea, he admitted the existence of a factual basis for the requirement of a nexus with interstate commerce. For these reasons, we find 18 U.S.C. § 922(g)(1), which" }, { "docid": "6611441", "title": "", "text": "Tenth Amendment “is essentially a tautology”: the Amendment reiterates the federalist notion that the federal government is limited to its enumerated substantive powers and may not invade the exclusive domain of state authority. New York v. United States, 505 U.S. at 156-57, 112 S.Ct. at 2417-18. The manner in which Congress acts is similarly restrained: “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’ ” Id. at 161, 112 S.Ct. at 2420-21 (quoting Hodel). Because § 922(o) was a proper exercise of Congress’s enumerated authority under the Commerce Clause, and because it does not compel, let alone commandeer, the states to do anything, the statute does not violate the Tenth Amendment. AFFIRMED. . Kenney entered his guilty plea without preserving his constitutional challenge for appeal. However, the government has expressly declined to raise a waiver argument, citing United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995) (challenge to constitutionality of statute of conviction is, in certain circumstances, jurisdictional claim not waived by guilty plea). . The grant of rehearing en banc impliedly vacated the Kirk panel decision. 5th Cir. R. 41.3. . To the extent, if any, that Congress in enacting § 922(o) \"pre-empt[ed] the historic powers of the States,” the intended scope of the statute is clear and unambiguous and thus satisfies the \"plain statement” requirement. Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991). The present case is thus quite unlike United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 523-24, 30 L.Ed.2d 488 (1971), where the Supreme Court applied a narrowing construction to an ambiguous gun control statute, former 18 U.S.C.App. I § 1202(a), to require the government to prove an interstate commerce nexus in prosecutions for possession of a firearm by a convicted felon. As the Bass Court explained: “In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the ‘mere possession’ of firearms; thus, we need not consider the relevance," }, { "docid": "3977575", "title": "", "text": "given weapon to interstate commerce, and to bring the defendant’s possession of the gun within a framework of regulation whose connection to interstate commerce is more apparent. Id. at 52. See also Wilson, 159 F.3d at 286-87; Bradford, 78 F.3d at 1222-23; United States v. Farnsworth, 92 F.3d 1001, 1006-07 (10th Cir.), cert. denied, 519 U.S. 1034, 117 S.Ct. 596, 136 L.Ed.2d 524 (1996); McAllister, 77 F.3d at 390. Gillespie makes no claim that the weapon issued to him by the Indianapolis Police Department might never have moved across state lines, and in acknowledging that the gun at the least has this minimal tie to interstate commerce, he has conceded away the only basis he might have for a Commerce Clause challenge to the statute. Without question, Congress has the power to regulate the interstate trade in firearms. Pursuant to that authority, it may act to stem the flow of guns to those whom it rationally believes may use them irresponsibly, including those whose convictions for domestic violence offenses reflect a propensity to inflict bodily harm upon others. The possibility that a particular individual might possess his gun solely within one state and for official purposes is irrelevant. So long as that gun has moved across state lines at least once, it is subject to the exercise of congressional Commerce Clause authority. 3. If, as we have concluded, section 922(g)(9) reflects a valid exercise of the federal power to regulate interstate commerce, then it follows that Congress has not violated the Tenth Amendment by intruding upon an area of authority reserved to the States. See New York v. United States, supra, 505 U.S. at 156, 112 S.Ct. at 2417 (“[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States”); Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (“[a]s long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States”); Wilson, 159 F.3d at 287. Gillespie suggests that the statute nonetheless" }, { "docid": "23116992", "title": "", "text": "legal, pertaining to the stipulated element. We therefore rebuff Meade’s suggestion that his newly-minted restoration of rights defense was left open by the parties, sub silentio, to be addressed at a later date. That defense was waived. See United States v. Valenzuela, 150 F.3d 664, 667-68 (7th Cir.1998) (finding waiver when defendant could have preserved his rights to a legal defense in connection with his factual admission anent drug sales, but failed to do so). And since waived defenses, unlike forfeited defenses, are not amenable to plain-error review, the only other thing that need be said is that, taken to its logical conclusion, the same waiver analysis dooms Meade’s argument, advanced for the first time in this venue, that the restoration of rights provision violates the Equal Protection Clause. See United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.1997) (holding that a party may waive questions of constitutional dimension). IV Having repulsed the appellant’s attacks on 18 U.S.C. § 922(g)(9), we turn now to 18 U.S.C. § 922(g)(8). Meade raises two constitutional challenges to this provision. First, Meade asserts that section 922(g)(8) affronts the Tenth Amendment, U.S. Const, amend. X, because it promotes interference by the federal government in state civil proceedings. The United States responds that the statute requires proof, in each and every case, that the firearm in question was transported or sold in interstate commerce. See infra note 3. Thus, the government reasons, enactment of the statute falls within Congress’s regulatory power under the Commerce Clause, U.S. Const, art. I, § 8, cl. 3. The Tenth Amendment reserves to the states all powers not vested by the Constitution in the federal sovereign. See Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 2376-77, 138 L.Ed.2d 914 (1997). It is settled beyond peradventure that if Congress properly acts pursuant to one of its enumerated powers, its work product does not offend the Tenth Amendment. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The question, then, is whether the enactment of section 922(g)(8) represents a valid exercise of congressional authority" }, { "docid": "13813834", "title": "", "text": "we expressly held that Congress acted well within its commerce power when it passed 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 — despite the fact that neither provision required any specific nexus between the drug activity being punished and interstate commerce. We concluded that there was a rational basis for Congress’ finding that “control of the intrastate incidents of traffic in controlled substances was essential to the control of interstate incidents of that traffic.” Lopez, 459 F.2d at 953; see also United States v. Weinrich, 586 F.2d 481, 489 (5th Cir.1978) (reaffirming that 21 U.S.C. § 841(a)(1) is constitutional even though no specific proof of a nexus with interstate commerce is required for conviction), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979). Courts have similarly upheld the constitutionality of 18 U.S.C. § 924(c). Most recently, in United States v. Dumas, 934 F.2d 1387 (6th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 641, 116 L.Ed.2d 658 (1991), the Sixth Circuit rejected an argument that section 924(c) violates the Tenth Amendment by not requiring a nexus between the possession of firearms and interstate commerce. Id. at 1390. It stated: Section 924(c) applies only to the use or carrying of a firearm during or in relation to a federal crime. It is a valid measure designed to deter the violence associated with drug trafficking, an activity validly regulated by Congress under the Commerce Clause. Id. (emphasis added); see also United States v. McMillian, 535 F.2d 1035, 1037 n. 1 (8th Cir.1976) (finding unpersuasive the argument that 18 U.S.C. § 924(c) is not within the scope of Congress’ power to regulate interstate commerce and therefore reserved to the states by the Tenth Amendment), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978). Accordingly, we hold that Owens’ prosecution and convictions under 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 924(c) do not run afoul of the Tenth Amendment. Each of the provisions is a valid exercise of Congress’ commerce power, even though no specific nexus with interstate commerce is required" }, { "docid": "13813835", "title": "", "text": "Amendment by not requiring a nexus between the possession of firearms and interstate commerce. Id. at 1390. It stated: Section 924(c) applies only to the use or carrying of a firearm during or in relation to a federal crime. It is a valid measure designed to deter the violence associated with drug trafficking, an activity validly regulated by Congress under the Commerce Clause. Id. (emphasis added); see also United States v. McMillian, 535 F.2d 1035, 1037 n. 1 (8th Cir.1976) (finding unpersuasive the argument that 18 U.S.C. § 924(c) is not within the scope of Congress’ power to regulate interstate commerce and therefore reserved to the states by the Tenth Amendment), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978). Accordingly, we hold that Owens’ prosecution and convictions under 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 924(c) do not run afoul of the Tenth Amendment. Each of the provisions is a valid exercise of Congress’ commerce power, even though no specific nexus with interstate commerce is required for conviction. Because these provisions are valid exercises of Congress’ commerce power, they cannot, under Lopez, violate the Tenth Amendment. Contrary to Owens’ suggestion, then, there was a “federal basis” for his prosecution: Congress has validly determined that, in order to control mierstate drug activity, it must be able to punish mirastate drug activity- ill. For the foregoing reasons, the district' court’s judgment is AFFIRMED." }, { "docid": "22923641", "title": "", "text": "there can be no violation of the Tenth Amendment. United States v. Mussari, 95 F.3d 787, 791 (9th Cir.1996) (finding no Tenth Amendment violation when Congress had authority to enact the Child Support Recovery Act under the Commerce Clause). Relying on Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), Appellant contends that the Residual Powers Clause of the Tenth Amendment provides an independent basis for striking down § 922(g)(8) regardless of whether Congress acted within the scope of its powers under the Commerce Clause. Printz involved a federal statute that attempted to require state officers to enforce a federal gun control program. Id. at 904-905, 117 S.Ct. 2365. The Court struck down the statute on the ground that Congress cannot conscript state officers to enact or enforce a federal regulatory program. Id. at 935, 117 S.Ct. 2365. The statute at issue here is a federal criminal statute to be implemented by federal authorities; it does not attempt to force the states or state officers to enact or enforce any federal regulation. We reject also Appellant’s contention that the statute infringes on a state’s ability to regulate domestic relations, an area traditionally left to the states. Section 922(g)(8) does not attempt to regulate domestic relations; it simply accepts the validity of domestic abuse restraining orders that have been issued under state law. We therefore conclude that the statute neither violates the Tenth Amendment nor impinges upon the sovereignty of the states. III. Appellant’s argument on insufficiency of the evidence rests on the contentions that venue was not established as to count four and that the government failed to prove beyond a reasonable doubt that Appellant was not entrapped as to counts one and two. In reviewing the sufficiency of evidence underlying a conviction, the standard is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bancalari, 110 F.3d 1425, 1428 (9th Cir.1997). A. Appellant was charged in count four with making" }, { "docid": "16757842", "title": "", "text": "Commerce Clause was satisfied as long as a “minimal nexus” to interstate commerce was shown. Accordingly, the government need only prove that the firearm in question moved in interstate com- meree at any time to meet its burden of proving that it was used “in or affecting commerce.” Bell, 70 F.3d at 498 (citing United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989)); see also United States v. Chesney, 86 F.3d 564, 571 (6th Cir.), cert. denied, - U.S. -, 117 S.Ct. 2470, 138 L.Ed.2d 225 (1996). The discussion in Lopez of the “substantially affects” standard did not “revis[e] the government’s burden of proof on a jurisdictional element in criminal proceedings” and did not alter the fact that it need only meet the “minimal nexus” test enunciated in Scarborough. United States v. Cardoza, 129 F.3d 6, 11 (1st Cir.1997). Accordingly, under § 922(g)(1), the government need only prove “a prior movement of the firearm across state lines” to satisfy the jurisdictional element and the Commerce Clause. United States v. Lewis, 100 F.3d 49, 51-52 (7th Cir.1996). Since § 922(g)(1) and § 922(g)(8) share the same jurisdictional element, this analysis is equally applicable to the present case, and Wilson’s argument accordingly fails. While Wilson levels a number of other challenges under the Commerce Clause, most amount to policy arguments and are inappropriate for us to consider. None of his other arguments merit discussion. Since § 922(g)(8) requires the government to prove that the firearms at issue have at least a minimal nexus with interstate commerce, the statute was enacted within Congress’ power under the Commerce Clause, and we find that it is constitutional. 2. Tenth Amendment Wilson next argues that § 922(g)(8) violates the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. In New York v. United States, the Supreme Court stated that “[i]f a power is delegated to" }, { "docid": "16757867", "title": "", "text": "district court’s finding that Wilson did not accept responsibility for his actions. The court was within its discretion in finding that Wilson was not entitled to a downward adjustment under U.S.S.G. § 3E1.1 and his sentence must stand. CONCLUSION Because Congress acted within its enumerated powers when it enacted 18 U.S.C. § 922(g)(8) and the statute does not run afoul of the Fifth or Tenth Amendments, Wilson’s constitutional challenge must fail. The district court also properly denied Wilson’s motion for acquittal and determined that Defendant’s Exhibit 6 was inadmissible and that Wilson’s proposed jury instructions should not be tendered. Finally, no basis exists in this case for a downward departure pursuant to U.S.S.G. § 3E1.1. Accordingly, Wilson’s conviction and sentence are AFFIRMED. . Under Illinois law, a plenary order of protection can be valid for up to two years and can be issued only after a hearing, while an emergency order is good for only several weeks and may be issued ex parte. . Congress enacted a new version of § 922(q) in 1996, addressing the flaws found by the Supreme Courl. . Wilson also cited Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), for the proposition that Congress can enact legislation pursuant to its Commerce Clause powers but still violate the Tenth Amendment. In Printz, the Court held that the portion of the Brady Act requiring local law enforcement officials to conduct background checks before an individual could purchase a firearm was unconstitutional. The Court followed its decision in New York, concluding that the federal government cannot command the States’ officers to administer or enforce federal regulatory programs. 117 S.Ct. at 2384. As with New York, the present case is distinguishable and Wilson's citation to Printz is of no avail. POSNER, Chief Judge, dissenting. It is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful. This is one of the bedrock principles of American law. It lies at the heart" }, { "docid": "3977576", "title": "", "text": "harm upon others. The possibility that a particular individual might possess his gun solely within one state and for official purposes is irrelevant. So long as that gun has moved across state lines at least once, it is subject to the exercise of congressional Commerce Clause authority. 3. If, as we have concluded, section 922(g)(9) reflects a valid exercise of the federal power to regulate interstate commerce, then it follows that Congress has not violated the Tenth Amendment by intruding upon an area of authority reserved to the States. See New York v. United States, supra, 505 U.S. at 156, 112 S.Ct. at 2417 (“[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States”); Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (“[a]s long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States”); Wilson, 159 F.3d at 287. Gillespie suggests that the statute nonetheless poses a Tenth Amendment problem by, for the first time, making it a federal offense for someone convicted of a misdemeanor to possess a firearm, and also by reaching the possession of firearms possessed in the public interest by state officials. Neither argument requires lengthy attention. Constitutionally speaking, there is nothing remarkable about the extension of federal firearms disabilities to persons convicted of misdemeanors, as opposed to felonies. The particular act criminalized by each subsection of 922(g) is the possession of a firearm (or ammunition) in or affecting commerce, an activity firmly within the scope of the commerce power. See Lopez, 514 U.S. at 561-62, 115 S.Ct. at 1631, distinguishing Bass, supra, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. Congress long ago imposed this ban on felons, and because the ban applied only to guns possessed in or affecting commerce, the Supreme Court did not view the proscription as an unconstitutional intrusion upon state sovereignty. See id. The recent inclusion of some misdemeanants raises no new concerns. True, most misdemeanors are creatures of" }, { "docid": "3977569", "title": "", "text": "violation notwithstanding what state or lo cal officials themselves may have to say about the propriety of the statute. 2. The Tenth Amendment does not itself demarcate the boundary dividing state from federal authority; its text “is essentially a tautology,” New York, 505 U.S. at 157, 112 S.Ct. at 2418, declaring only that the States retain those powers not surrendered, id. at 156, 112 S.Ct. at 2418. Whether Congress has invaded the province reserved to the States by the Tenth Amendment is therefore a question that must be answered by inquiring whether Congress has exceeded the limits of authority bestowed upon it by Article I of the Constitution. See id. at 156-57, 112 S.Ct. at 2418; United States v. Wilson, supra, 159 F.3d at 287. The Gun Control Act and its amendments were enacted pursuant to the Commerce Clause, which authorizes Congiess to “regulate Commerce ... among the several States.... ” U.S. Const. art. I, § 8, cl. 3. To resolve Gillespie’s Tenth Amendment challenge to section 922(g)(9), then, we must first consider whether the provision reflects an appropriate exercise of the commerce power. Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Gillespie contends that the firearms ban exceeds congressional Commerce Clause authority to the extent that it bans state and local law enforcement officials from possessing firearms wholly within the boundaries of a single State and in pursuit of their official duties. The Supreme Court in Lopez explained that the Commerce Clause permits Congress to regulate three domains: (1) the channels of interstate commerce; (2) the instrumental-ities of interstate commerce, as well as persons and objects in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Id. at 558-59, 115 S.Ct. at 1629-30. Lopez concerned a provision of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which criminalized the knowing possession of a firearm within, a school zone. Because that provision did not purport to regulate either the channels or instrumentalities of interstate commerce or the people and things moving in interstate commerce, section 922(q) could only" }, { "docid": "16757843", "title": "", "text": "and the Commerce Clause. United States v. Lewis, 100 F.3d 49, 51-52 (7th Cir.1996). Since § 922(g)(1) and § 922(g)(8) share the same jurisdictional element, this analysis is equally applicable to the present case, and Wilson’s argument accordingly fails. While Wilson levels a number of other challenges under the Commerce Clause, most amount to policy arguments and are inappropriate for us to consider. None of his other arguments merit discussion. Since § 922(g)(8) requires the government to prove that the firearms at issue have at least a minimal nexus with interstate commerce, the statute was enacted within Congress’ power under the Commerce Clause, and we find that it is constitutional. 2. Tenth Amendment Wilson next argues that § 922(g)(8) violates the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. In New York v. United States, the Supreme Court stated that “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Thus, the Tenth Amendment and Article I of the Constitution are complements to one another; when Congress acts pursuant to an enumerated power, there can be no violation of the Tenth Amendment. Black, 125 F.3d at 462 (citations omitted); accord United States v. Mussari, 95 F.3d 787, 791 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1567, 137 L.Ed.2d 712 (1997), and United States v. Hampshire, 95 F.3d 999, 1004 (10th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 753, 136 L.Ed.2d 690 (1997). Wilson disagrees with our past reliance on New York, stating that the “blanket reading” we have given it is “simply wrong.” Wilson notes that in New York, the Supreme Court invalidated a portion of the Low-Level" }, { "docid": "13813833", "title": "", "text": "the United States Constitution.” The Tenth Amendment of the United States Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.” U.S. Const, amend. X. In interpreting this amendment, this court has long held that “[t]he Tenth Amendment does not operate upon the valid exercise of powers delegated to Congress by the Commerce Clause.” United States v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). We have stated: “If the passage of [a federal criminal statute is] a valid exercise of [Congress’ commerce] power, no violation of the Tenth Amendment can occur.” Id.; see also In re Grand Jury Proceedings, 801 F.2d 1164, 1169-70 (9th Cir.1986) (concluding that government investigation into illegal dispensation of anabolic steroids, because it was valid exercise of commerce power, did not violate Tenth Amendment). The statutes under which Owens’ was prosecuted and convicted are all valid exercises of Congress’ commerce power. In Lopez, we expressly held that Congress acted well within its commerce power when it passed 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 — despite the fact that neither provision required any specific nexus between the drug activity being punished and interstate commerce. We concluded that there was a rational basis for Congress’ finding that “control of the intrastate incidents of traffic in controlled substances was essential to the control of interstate incidents of that traffic.” Lopez, 459 F.2d at 953; see also United States v. Weinrich, 586 F.2d 481, 489 (5th Cir.1978) (reaffirming that 21 U.S.C. § 841(a)(1) is constitutional even though no specific proof of a nexus with interstate commerce is required for conviction), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979). Courts have similarly upheld the constitutionality of 18 U.S.C. § 924(c). Most recently, in United States v. Dumas, 934 F.2d 1387 (6th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 641, 116 L.Ed.2d 658 (1991), the Sixth Circuit rejected an argument that section 924(c) violates the Tenth" }, { "docid": "6752989", "title": "", "text": "these weapons across state lines.” Id. at 1060. It likewise is rational for Congress to conclude that intrastate ma-ehinegun possession substantially affects interstate commerce in those weapons. CONCLUSION We hold that 18 U.S.C. § 922(o) is constitutional and does not violate either the Second Amendment or the Commerce Clause, and therefore we AFFIRM Haney’s conviction. . Haney argues that the federal courts lack jurisdiction over him because the above-cited statutes are unconstitutional. We reject this contention as frivolous. . Some courts have reached a similar conclusion under the first Lopez category, regulation of the channels of interstate commerce. See, e.g., Beuckelaere, 91 F.3d at 784; Rambo, 74 F.3d at 952 (9th Cir.1996). But see Kenney, 91 F.3d at 889 (criticizing this approach and suggesting that the analysis must be done under the third category). We do not discuss the first category here but note that the Lopez categories necessarily overlap to some extent. See United States v. Schaffner, 258 F.3d 675, 2001 WL 827618, at *4 (7th Cir.2001). . In Commerce Clause challenges to § 922(o), we and other circuits have referred to legislative history not only of § 922(o) itself, but also of other federal gun legislation generally. E.g., Wilks, 58 F.3d at 1521 n. 4; Franklyn, 157 F.3d at 95; Ryhar, 103 F.3d at 279; Kenney, 91 F.3d at 889-90. We have concluded that § 922(o ) is closely intertwined with other federal gun legislation and that Congress should not be required to rearticu-late its old findings every time it adds an additional provision. Furthermore, because a Commerce Clause justification for legislation can be any rational basis, whether or not so articulated by Congress, we refer to congressional findings in the context of other gun legislation for rational arguments in support of the gun provision at issue. Cf. Lopez, 514 U.S. at 562-63, 115 S.Ct. 1624 (stating that \"Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” particularly when a \"substantial effect [is] visible to the naked eye”). . The markets for semiautomatic weapons and machineguns" }, { "docid": "6611440", "title": "", "text": "“As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power.” Id. at 158, 112 S.Ct. at 2418-19 (citing Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942)). The possession of a machine gun, because of its relation to the closely regulated interstate market in machine guns, can not be considered purely local or noncommercial. Moreover, the modest regulatory means chosen by Congress were “reasonably' adapted to the end permitted by the Constitution.” Hodel, 452 U.S. at 276, 101 S.Ct. at 2360. III. Finally, Kenney briefly argues that § 922(o) violates the Tenth Amendment by usurping the states’ traditional police powers. But “Lopez ... did not call into question the well-established principle that Congress may regulate conduct even though that conduct already violates state law.” Wilson, 73 F.3d at 684. Moreover, the Supreme Court has explained that the Tenth Amendment “is essentially a tautology”: the Amendment reiterates the federalist notion that the federal government is limited to its enumerated substantive powers and may not invade the exclusive domain of state authority. New York v. United States, 505 U.S. at 156-57, 112 S.Ct. at 2417-18. The manner in which Congress acts is similarly restrained: “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’ ” Id. at 161, 112 S.Ct. at 2420-21 (quoting Hodel). Because § 922(o) was a proper exercise of Congress’s enumerated authority under the Commerce Clause, and because it does not compel, let alone commandeer, the states to do anything, the statute does not violate the Tenth Amendment. AFFIRMED. . Kenney entered his guilty plea without preserving his constitutional challenge for appeal. However, the government has expressly declined to raise a waiver argument, citing United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995) (challenge to constitutionality of statute of conviction is, in certain circumstances, jurisdictional claim not" }, { "docid": "22923640", "title": "", "text": "the Commerce Clause. In Jones, the Court had before it 18 U.S.C. § 844(i), which makes it a crime to “maliciously damag[e] or destro[y], ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 120 S.Ct. at 1907. The question for decision was whether the statute covered the arson of an owner-occupied private residence. Id. at 1908. The Court held that the statute does not apply to a private residence not “currently used in commerce or in an activity affecting commerce.” Id. at 1912. Section 922(g)(8) regulates guns, products that are manufactured in and travel through interstate commerce. This can be distinguished from the non-economic activity of committing arson against a private residence in Jones, committing violence against women in Morrison and possessing a firearm within 1000 feet of a school in Lopez. Accordingly, we hold that § 922(g)(8) does not offend the Commerce Clause. D. We have held that if Congress acts under one of its enumerated powers, there can be no violation of the Tenth Amendment. United States v. Mussari, 95 F.3d 787, 791 (9th Cir.1996) (finding no Tenth Amendment violation when Congress had authority to enact the Child Support Recovery Act under the Commerce Clause). Relying on Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), Appellant contends that the Residual Powers Clause of the Tenth Amendment provides an independent basis for striking down § 922(g)(8) regardless of whether Congress acted within the scope of its powers under the Commerce Clause. Printz involved a federal statute that attempted to require state officers to enforce a federal gun control program. Id. at 904-905, 117 S.Ct. 2365. The Court struck down the statute on the ground that Congress cannot conscript state officers to enact or enforce a federal regulatory program. Id. at 935, 117 S.Ct. 2365. The statute at issue here is a federal criminal statute to be implemented by federal authorities; it does not attempt to force the states or state officers to enact or enforce any" } ]

[ { "docid": "16516271", "title": "", "text": "complaint and can affirm on any basis fairly supported by the record. Korb v. Lehman, 919 F.2d 243, 246 (4th Cir.1990). We hold that Regula tion J does not preempt Eisenberg’s negligence claims but the claims still fail because Wachovia does not owe Eisenberg a duty of care under the facts of this case. II We discussed the preemptive effect of Regulation J in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995). Sub-part B of Regulation J incorporates Article 4A of the Uniform Commercial Code to “provide [ ] rules to govern funds transfers through Fedwire.” 12 C.F.R. § 210.25(a) (2002); see id. at § 210.25(a)-(b). The rules adopted from Article 4A serve as the exclusive means for determining the rights, duties and liabilities of all parties involved in a Fedwire funds transfer. Comm, on Sec. 210.25(b), 12 C.F.R. Part 210, Subpt. B., App. A (2002). Affected parties include senders, intermediary banks, receiving banks and beneficiaries. Id. The Federal Reserve Board intended Subpart B to create a “uniform and comprehensive national regulation of Fedwire transfers.” Donmar, 64 F.3d at 949. By its own terms, Regulation J “supersedes or pre-empts inconsistent provisions of state law.” Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A (2002). We held in Donmar that Regulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Sub-part B. 64 F.3d at 949-50. Determining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state claim would be covered under Subpart B as well. Eisenberg’s negligence claims focus on several aspects of Wachovia’s conduct in establishing Reid’s account and crediting Eisenberg’s funds transfer to that account. One instance of alleged negligence involves Wachovia “accepting and crediting the Wire Transfer to Mr. Reid’s account when the wire instructions designated ‘Bear Stearns’ as the intended recipient.” Eisenberg addressed the Fedwire transfer to “Wachovia Bank,” “Beneficiary Account 1861296138,” “For Further Credit to BEAR STEARNS.”" } ]

[ { "docid": "16516284", "title": "", "text": "negligence claim, holding that the bank did not owe plaintiffs a duty of care to monitor the disbursement of the loan proceeds. Id. at 636. The court reasoned that, absent a contractual obligation arising from the letter of credit itself, there was no relationship between the bank and the plaintiffs to give rise to a duty of care. Id. at 637. Carlson suggests that the North Carolina Court of Appeals would not find a duty of care in this case, where there was no direct relationship at all between Eisenberg and Wa-chovia, much less a contractual obligation. We hold that Wachovia did not owe Ei-senberg a duty of care under the facts of this case. Eisenberg consequently cannot maintain a claim of negligence against Wa-chovia. IV The district court properly dismissed Ei-senberg’s complaint with prejudice. Ei-senberg’s negligence claims are not preempted by Subpart B of Regulation J. The negligence claims are instead dismissed because Wachovia does not owe Eisenberg a duty of care. AFFIRMED. . Wachovia argues that this case is indistinguishable from National Council of the Churches of Christ v. First Union National Bank, No. 97-1851, 1998 WL 416744 (4th Cir. July 22, 1998). First Union applied Donmar and held that state law claims based on conduct before the Fedwire transfer, such as opening an account, are preempted by Sub-part B: [Plaintiffs'] state law claims all arise out of their losses suffered when [the defendant bank] transferred the [funds].... Were it not for the alleged unauthorized transfer, [plaintiffs] could not be heard to complain as they would have suffered no damages .... [Plaintiffs] cannot compartmentalize and detach [their] state causes of action simply because certain of [defendant’s] activities occurred before the transfer when such causes of action would not have been available minus the resulting transfer. Id. at *3-*4 (paragraph break omitted). First Union is a nonbinding unpublished opinion. See 4th Cir. Local Rule 36(c). We moreover find First Union's reasoning unpersuasive. We think the better approach to a question of Regulation J preemption, as Donmar instructs, is to determine straightforwardly whether a state law cause of action is" }, { "docid": "10424172", "title": "", "text": "state causes of action based on negligence or unlawful payment on the facts of this case are preempted by Regulation J. V. Donmar argues that the notation STC DONMAR TRANS CODE 1021011 on its wire transfer dated February 26, 1991 and the notation SLC/DONMAR TRANS CODE 102-1011 on its wire transfer dated March 27,1991 indicate that STC and Donmar were joint beneficiaries of the transfer. Therefore, Donmar claims that Southern National violated section 4A — 404(a) by crediting the funds to Stephen’s only. Section 4A — 404(a) of Regulation J provides in relevant part: [I]f a beneficiary’s bank accepts a payment order, the bank is obliged to pay the amount of the order to the beneficiary of the order.... In support of its contention that an issue of fact exists as to whether Donmar was a beneficiary of the transfer and that Southern National violated this section, Donmar relies upon the affidavit of Levinson to the effect that it was his intention, by putting Donmar’s name on what he refers to as the “beneficiary line” of the wire transfer, that Donmar be a joint beneficiary, along with Stephen’s, of the transfer. How ever, Donmar submits no evidence that this cryptic reference would render Donmar a joint beneficiary of the transfer. Donmar merely states that the notations in question appeared on what Don-mar calls the “beneficiary line” of the wire transfer. Donmar points to no authority or evidence of common usage within the industry to support its interpretation of the transfer order and its claimed joint beneficiary status, and we fail to see how Donmar’s construction of the message can be justified, in light of the facts of this case and the Fedwire format and funds transfer practice. The format used for Fedwire has no separately designated fields for data about the originator or beneficiary of a transfer, Fed to Expand Fedwire Format to Oblige New Wire Regs, Money Laundering Alert, Dec. 1993, at 6, and “does not provide sufficient space for complete originator and beneficiary information,” Amy G. Rudnick and Julie A. Stanton, Treasury and Fed Are Fashioning New Wire" }, { "docid": "6649778", "title": "", "text": "a standard of circumstantial reasonableness within a commercial setting (§ 4A-202(c)) which, by and large, determine who will bear the risk of loss for an erroneous payment under § 4A-205. To interject an alternative standard of due care with its attendant liability from an additional legal source (such as state common law negligence) would necessarily involve either a direct conflict between federal and state standards or useless repetition of identical rules of law arising from state sources. Directly conflicting provisions of state negligence law are expressly pre-empted by the plain language of Regulation J. Compatible aspects of negligence doctrine would be pre empted because they do not relate exclusively to governing funds transfers and are thus uselessly repetitive and implicitly pre-empted by Regulation J. In the case of a conflicting standard between North Carolina common law negligence and the built-in due care standards of Regulation J, the commentary on the regulations and its structure and purpose unambiguously counsel that the common law is preempted by the regulation within this very narrow context. In the case of a complete compatibility between Regulation J and North Carolina negligence doctrine, a cause of action brought under both standards would senselessly duplicate liability for the same wrongs under the same theories although the standards of liability issue from different sovereigns. The Court believes this would be an untenable inference to draw. To do so would require the Court to find that by promulgating Regulation J with congressionally delegated authority, the Federal Reserve Board, and through it, Congress, intended to multiply, duplicate, complicate and exacerbate bank liability from FedWire transfers. The Court thinks it more plausible to conclude that the Federal Reserve Board intended to streamline, unify, simplify and narrow liability exposure for such transactions. The Court will not impute illogie to the Federal Reserve Board by holding that in promulgating Regulation J, it intended to complicate matters for banks or their customers. 2) The Wrongful Payment Claim A similar analysis applies to Plaintiffs wrongful payment claim. Inasmuch as that claim is compatible with Regulation J, it is senselessly duplicative, and where it contradicts the" }, { "docid": "23233157", "title": "", "text": "of the LMRA, see Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), § 502(a)(1)(B) of ERISA, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and § § 85 and 86 of the National Bank Act, see Beneficial Nat’l Bank, 539 U.S. at 10-11, 123 S.Ct. 2058. The district court, in finding that Regulation J might completely preempt the Receivers’ state law claims, characterized two Fourth Circuit opinions as deciding the question in favor of complete preemption, namely Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 223-24 (4th Cir.2002), and Donmar Enterprises, Inc. v. Southern National Bank, 64 F.3d 944, 948-50 (4th Cir.1995). These decisions, however, clearly deal with ordinary preemption, rather than the complete preemption that would justify original arising-under jurisdiction. The district court erred in holding that Regulation J, a federal regulation promulgated by the Federal Reserve Board, a federal agency, could completely preempt the Receivers’ state law claims; only Congress can completely preempt a state cause of action. See Beneficial Nat’l Bank, 539 U.S. at 8, 9 & n. 5, 123 S.Ct. 2058 (describing doctrine of complete preemption as when a “federal statute completely pre-empts the state-law cause of action”; “Only if Congress intended [the statute at issue] to provide the exclusive cause of action ... would the statute ” completely preempt state law claims; “[T]he proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive.” (emphases added)); Metro. Life Ins., 481 U.S. at 66, 107 S.Ct. 1542 (the touchstone of complete preemption is “the intent of Congress ” (emphasis added)); Peters v. Lincoln Elec. Co., 285 F.3d 456, 468 n. 11 (6th Cir.2002) (“Without evidence of Congress’s intent to transfer jurisdiction to federal courts, there is no basis for invoking federal judicial power.” (emphasis added)); Hyzer v. Cigna Prop. Cas. Ins. Co., 884 F.Supp. 1146, 1152 (E.D.Mich.1995) (no support for contention that agency regulations could completely preempt area). This conclusion fits in more generally with the balance struck" }, { "docid": "10424166", "title": "", "text": "wire that same money involved to Southern National, using the code number given to it by Stephen’s. When the money was received at Southern National in the sum expected and with the same code number, it was deposited in Stephen’s account in Southern National, as Stephen’s had directed Southern National. We find that the foregoing facts are not contradicted and support the judgment appealed from. We are of opinion there is no issue of fact in this ease. II. Donmar claims that it lost $187,276.71 and filed a complaint seeking recovery under three counts, alleging Southern National’s violation of Federal Reserve Board Regulation J, 55 Fed.Reg. 40,791 (1990) (as amended Oct. 5, 1990) (codified at 12 C.F.R. Part 210 (Subpart B and Appendix B)); wrongful payment; and negligence. Southern National filed a motion to dismiss or for summary judgment. The district court granted summary judgment to Southern National on the Regulation J claim and dismissed the negligence and wrongful payment claims as being inconsistent with, and therefore pre-empted by, Regulation J. Donmar raises three issues on appeal. First, Donmar claims that an issue of fact exists as to who was the beneficiary of the wire transfers and argues that both it and Stephen’s were joint beneficiaries and that Southern National was obligated, pursuant to Regulation J’s adoption of section 4A-404(a) of the U.C.C., to pay them as joint beneficiaries. See Part I, supra. Second, Donmar argues that Southern National was required to refuse to accept the wire transfer, since the designation STC/Donmar was an unidentifiable or nonexistent beneficiary under Regulation J’s section 4A-207. Third, Donmar argues that the district court erred in determining that Regulation J pre-empted its state law causes of action in this case. III. Our review of a summary judgment is de novo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 67, 68, 130 L.Ed.2d 24 (1994). Since the provisions of Regulation J are applicable to this case, a review of those regulations and the context in which they arose is appropriate. As of January 1,1991, the Federal Reserve Board" }, { "docid": "10424168", "title": "", "text": "revised Subpart B of Regulation J to apply the provisions of U.C.C. Article 4A to funds transfers handled by Federal Reserve banks. The official commentary to the U.C.C. provisions in Regulation J, Subpart B provide that the official comments to U.C.C. Article 4A, while not incorporated in Subpart B or its official commentary, may nonetheless “be useful in interpreting Article 4A.” Recently, electronic funds transfers, also known as wire transfers, have become increasingly utilized by businesses and financial institutions to effect payments and transfers of a vast volume of funds. The success of funds transfer systems is predicated on speed, efficiency, high volume, low cost, certainty, and finality. The drafters of the U.C.C. considered these factors in assessing liabilities under Article 4A: This system of pricing may not be feasible if the bank is exposed to very large liabilities in connection with the transaction.... A major policy issue in the drafting of Article 4A is that of determining how risk of loss is to be allocated given the price structure in the industry. U.C.C. § 4A-101, Prefatory Note. IV. Donmar contends that Regulation J does not pre-empt its state law negligence and wrongful payment claims and that the district court erred in dismissing these causes of action. In considering the preemptive effect of federal law, including federal regulations, we first look to the regulation to determine the expressed pre-emptive intent of the Federal Reserve Board. Regulation J itself contains a preemption standard: [Regulations of the Board may pre-empt inconsistent provisions of state law. Accordingly, subpart B of this part supersedes or pre-empts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart B of this part, such as Article 4A, as enacted in any state, as it applies to parties to funds transfers through Fedwire whose rights are not governed by subpart B of this part. Appendix A to Subpart B to Part 210, 12 C.F.R. § 210.25 (1995). This regulation specifies that inconsistent provisions of state law are pre-empted, while state law that does not conflict" }, { "docid": "2617347", "title": "", "text": "is not enforceable, in whole or in part, against the customer under 670.203 the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund.... In this case, Mr. Bensman alleges that the defendants are strictly liable under section 670.204 to return $4.5 million of funds that were wired without authorization during the period encompassing January through March of 2000. Defendants contend that removal jurisdiction is proper in this case because Mr. Bensman’s wire transfer claim is completely preempted by Subpart B of Federal Reserve Regulation J (12 C.F.R. §§ 210.25-210.32). These regulations govern wire transfers made via the Federal Reserve Wire Transfer Network (“Fed-wire”). See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1229 (11th Cir.2000) (explaining Fedwire system). In Gross-man, though the Eleventh Circuit did not specifically address the issue of complete preemption, the court recognized that in cases alleging “erroneous execution of a Fedwire funds transfer ... the provisions of Regulation J exclusively apply to the fund transfer.” Grossman, 225 F.3d at 1232. In Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220 (4th Cir.2002), the Fourth Circuit specifically considered whether Regulation J completely preempts any state law claims arising from erroneous execution of a Fedwire funds transfer. The Fourth Circuit examined its holding in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995), and stated that “[b]y its own terms, Regulation J ‘supersedes or pre-empts inconsistent provisions of state law.’ ” Eisenberg, 301 F.3d at 223 (citing Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A. (2002)). The Eisenberg court then added that “[rjegulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Subpart B.” Id. (citing Donmar 64 F.3d at 949-50). Finally, the court added that “[djetermining if a state law claim is preempted" }, { "docid": "23233156", "title": "", "text": "75, 78-79 (1st Cir.1996). Under that formulation, the appropriate place to look is the correspondence and conversations between the Banks and the Receivers. Neither party addresses this point, however, and the record is relatively silent as to the character of the claims made on FTB by the Receivers, as opposed to their claims on Am-South, who received a draft complaint. Instead, FTB defends the district court’s finding of subject matter jurisdiction entirely on the basis of the so-called “complete preemption” of Regulation J. Complete preemption is a narrow exception to the well-pleaded complaint rule, whereby plaintiff is master of his complaint and can choose to assert only state law claims, in situations where Congress has indicated an intent to occupy the field so completely that any ostensibly state law claim is in fact a federal claim for purposes of arising-under jurisdiction. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6-9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). The Supreme Court has only found three statutes that evince this sort of Congressional intent: § 301 of the LMRA, see Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), § 502(a)(1)(B) of ERISA, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and § § 85 and 86 of the National Bank Act, see Beneficial Nat’l Bank, 539 U.S. at 10-11, 123 S.Ct. 2058. The district court, in finding that Regulation J might completely preempt the Receivers’ state law claims, characterized two Fourth Circuit opinions as deciding the question in favor of complete preemption, namely Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 223-24 (4th Cir.2002), and Donmar Enterprises, Inc. v. Southern National Bank, 64 F.3d 944, 948-50 (4th Cir.1995). These decisions, however, clearly deal with ordinary preemption, rather than the complete preemption that would justify original arising-under jurisdiction. The district court erred in holding that Regulation J, a federal regulation promulgated by the Federal Reserve Board, a federal agency, could completely preempt the Receivers’ state law claims; only" }, { "docid": "10424171", "title": "", "text": "intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article. Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article. It is apparent from the U.C.C. commentary that a uniform and comprehensive national regulation of Fedwire transfers was the goal of the Board in adopting Article 4A. Furthermore, the Board has made clear that the type of state laws it considers not in conflict with Subpart B are state laws specifically governing funds transfers and parties not subject to Subpart B. Because we conclude in Part V that Southern National complied with and therefore has no liability under Subpart B, any liability founded on state law of negligence or wrongful payment would necessarily be in conflict with the federal regulations and is pre-empted. See Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993). Accordingly, we hold that any state causes of action based on negligence or unlawful payment on the facts of this case are preempted by Regulation J. V. Donmar argues that the notation STC DONMAR TRANS CODE 1021011 on its wire transfer dated February 26, 1991 and the notation SLC/DONMAR TRANS CODE 102-1011 on its wire transfer dated March 27,1991 indicate that STC and Donmar were joint beneficiaries of the transfer. Therefore, Donmar claims that Southern National violated section 4A — 404(a) by crediting the funds to Stephen’s only. Section 4A — 404(a) of Regulation J provides in relevant part: [I]f a beneficiary’s bank accepts a payment order, the bank is obliged to pay the amount of the order to the beneficiary of the order.... In support of its contention that an issue of fact exists as to whether Donmar was a beneficiary of the transfer and that Southern National violated this section, Donmar relies upon the affidavit of Levinson to the effect that it was his intention, by putting Donmar’s name on what he refers to as the “beneficiary line”" }, { "docid": "10424169", "title": "", "text": "4A-101, Prefatory Note. IV. Donmar contends that Regulation J does not pre-empt its state law negligence and wrongful payment claims and that the district court erred in dismissing these causes of action. In considering the preemptive effect of federal law, including federal regulations, we first look to the regulation to determine the expressed pre-emptive intent of the Federal Reserve Board. Regulation J itself contains a preemption standard: [Regulations of the Board may pre-empt inconsistent provisions of state law. Accordingly, subpart B of this part supersedes or pre-empts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart B of this part, such as Article 4A, as enacted in any state, as it applies to parties to funds transfers through Fedwire whose rights are not governed by subpart B of this part. Appendix A to Subpart B to Part 210, 12 C.F.R. § 210.25 (1995). This regulation specifies that inconsistent provisions of state law are pre-empted, while state law that does not conflict is not pre-empted, and lists as an example of a non-conflicting state law, a state law governing funds transfers that applies to parties to which the federal Article 4A does not apply. But Article 4A applies in this ease. The Official Commentary to U.C.C. section 4A-102 provides insight as to the objectives of the Federal Reserve Board in adopting Article 4A: Before this Article was drafted there was no comprehensive body of law — statutory or judicial — that defined the judicial nature of a funds transfer or the rights and obligations flowing from payment orders. Judicial authority with respect to funds transfers is sparse, undeveloped and not uniform. Judges have had to resolve disputes by referring to general principles of common law or equity ... [b]ut attempts to define rights and obligations in funds transfers by general principles or by analogy to rights and obligations in negotiable instrument law or the law of check collection have not been satisfactory.... The rules that emerged represent a careful and delicate balancing of those interests and are" }, { "docid": "22995226", "title": "", "text": "transfer in this case because it was effected by the use of Fedwire, the Federal Reserve Banks’ wire-transfer system. See 12 C.F.R. § 210.25-32. Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire. See 12 C.F.R. § 210.25(b)(1); Appendix B to Subpart B to Part 210 ; see also Donmar Enters., Inc. v. Southern Nat’l Bank, 64 F.3d 944, 948 (4th Cir.1995). We address Nationsbank’s duty under Regulation J and U.C.C. Article 4A once Grossman requested the fund transfer, so that we can determine whether Gross-man’s complaint sufficiently stated a claim that Nationsbank breached its duty under those provisions. However, we will first provide Article 4A’s definition of the terms that are necessary to discuss the wire-transfer process in this case. The originator is “the sender of the first payment order in a funds transfer,” in this case, Grossman. 12 C.F.R. Part 210, Subpart B, App. B, § 4A-104(c). The payment order is the “instruction ... to pay ... a fixed or determinable amount of money to a beneficiary.” Id. § 4A-103(a)(l). The originator’s bank is “the receiving bank to which the payment order of the originator is issued if the originator is not a bank.” Id. § 4A-104(d)(i). Because Grossman is not a bank, he took his payment order to the originator’s bank, in this case, Nations-bank. The beneficiary is “the person to be paid by the beneficiary’s bank.” Id. § 4A-103(a)(2). The beneficiary’s bank is “the bank identified in the payment order in which an account of the beneficiary is to be credited pursuant to the order or which otherwise is to make payment to the beneficiary if the order does not provide for payment to an account.” Id. § 4A-103(a)(3). In the simplest Fedwire transfer, the funds to be transferred are debited from the originator’s account, and travel from the originator’s bank to the beneficiary’s bank, where the beneficiary’s account is credited. However, an originator can in struct the originator bank that the funds are to travel through one or more intermediary banks, defined by Article 4A as a “receiving bank other than the" }, { "docid": "6649777", "title": "", "text": "broad and unfocused common law liability theories would be an implausible inference to draw. To do so, the Court would have to assume that the Federal Reserve Board found common law theories adequately suited to FedWire funds transfers, but still thought it necessary to adopt the technical Regulation J scheme to govern those funds transfers. This would be an odd inference indeed. For the above enumerated reasons, the Court holds that compatible provisions of state law which do not relate exclusively to governing funds transfers are also pre-empted by Regulation J because the only compatible measures which are saved by the text of the Regulation are those which relate to governing funds transfers. All other remedies contravene the structure and purpose of Regulation J and are pre-empted. 1) The Negligence Claim The Court will first address the preemption of the negligence claim in this case. Regulation J is a detailed, carefully assembled legal regime. It also contains its own built in standards of due care. For example, Regulation J establishes security procedures (§ 4A-201), and a standard of circumstantial reasonableness within a commercial setting (§ 4A-202(c)) which, by and large, determine who will bear the risk of loss for an erroneous payment under § 4A-205. To interject an alternative standard of due care with its attendant liability from an additional legal source (such as state common law negligence) would necessarily involve either a direct conflict between federal and state standards or useless repetition of identical rules of law arising from state sources. Directly conflicting provisions of state negligence law are expressly pre-empted by the plain language of Regulation J. Compatible aspects of negligence doctrine would be pre empted because they do not relate exclusively to governing funds transfers and are thus uselessly repetitive and implicitly pre-empted by Regulation J. In the case of a conflicting standard between North Carolina common law negligence and the built-in due care standards of Regulation J, the commentary on the regulations and its structure and purpose unambiguously counsel that the common law is preempted by the regulation within this very narrow context. In the case" }, { "docid": "22995225", "title": "", "text": "complaint failed to allege a cause of action under Regulation J, 12 C.F.R. Part 210, Subpart B, App. B, § 4A-302(a)(l). III. STANDARD OF REVIEW We review de novo a district court’s order dismissing a complaint for failure to state a claim upon which relief could be granted. See Lopez v. First Union National Bank of Florida, 129 F.3d 1186, 1189 (11th Cir.1997) (citation omitted). When considering a motion to dismiss, all facts set forth in the plaintiffs complaint “are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.” GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir.1993). A complaint may not be dismissed pursuant to Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lopez, 129 F.3d at 1189 (internal quotations and citation omitted). IV. DISCUSSION The district court held, and the parties agree, that the provisions of Regulation J exclusively apply to the fund transfer in this case because it was effected by the use of Fedwire, the Federal Reserve Banks’ wire-transfer system. See 12 C.F.R. § 210.25-32. Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire. See 12 C.F.R. § 210.25(b)(1); Appendix B to Subpart B to Part 210 ; see also Donmar Enters., Inc. v. Southern Nat’l Bank, 64 F.3d 944, 948 (4th Cir.1995). We address Nationsbank’s duty under Regulation J and U.C.C. Article 4A once Grossman requested the fund transfer, so that we can determine whether Gross-man’s complaint sufficiently stated a claim that Nationsbank breached its duty under those provisions. However, we will first provide Article 4A’s definition of the terms that are necessary to discuss the wire-transfer process in this case. The originator is “the sender of the first payment order in a funds transfer,” in this case, Grossman. 12 C.F.R. Part 210, Subpart B, App. B, § 4A-104(c). The payment order is the “instruction ... to pay ... a fixed or determinable amount of money to a beneficiary.” Id. § 4A-103(a)(l)." }, { "docid": "10424159", "title": "", "text": "Affirmed by published opinion. Judge WIDENER wrote the opinion in which Chief Judge ERVIN and Judge BRINKEMA concurred. OPINION WIDENER, Circuit Judge: Donmar Enterprises, Inc. (Donmar) appeals from the district court’s grant of sum mary judgment to Southern National Bank of North Carolina (Southern National) as to Count I of Donmar’s complaint, which was predicated on Federal Reserve Board Regulation J, Subpart B, Appendix B, and dismissal of Counts II and III, which raised negligence and wrongful payment claims under state law. The district court held that a private cause of action can be maintained pursuant to Regulation J, and that Regulation J pre-empted Donmar’s state law claims of negligence and wrongful payment. It granted summary judgment to Southern National as to the Regulation J claim since the requirements of Regulation J were satisfied, and along the same line, dismissed the state law counts. See Donmar Enters., Inc. v. Southern Nat’l Bank, 828 F.Supp. 1230, 1239 (W.D.N.C.1993). We affirm. I. We recount the facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Donmar, located in Florida, engages in the selling of automobile sunroofs and accessories, which involves purchasing inventory from businesses in foreign countries. In making foreign purchases, Donmar pays by converting U.S. currency to foreign currency. For this conversion, Don-mar used Stephen’s Trading Company (Stephen’s), a North Carolina company. After a transaction in which Donmar wired funds directly into Stephen’s account at Wachovia Bank in North Carolina, Donmar’s president, Kal Levinson, and Stephen Selleck, Stephen’s owner and president, agreed that future transfers would be handled through the defendant, Southern National, and that Don-mar would be a beneficiary of Donmar’s wire transfers to Southern National, which would be sent to Southern National with a Stephen’s transaction code. Donmar did not have an account with Southern National, Stephen’s did have. Donmar would then fax to Stephen’s its authorization for the purchase of foreign currency and where it was to be transferred, and Stephen’s would deliver the facsimile from Donmar to" }, { "docid": "16516285", "title": "", "text": "of the Churches of Christ v. First Union National Bank, No. 97-1851, 1998 WL 416744 (4th Cir. July 22, 1998). First Union applied Donmar and held that state law claims based on conduct before the Fedwire transfer, such as opening an account, are preempted by Sub-part B: [Plaintiffs'] state law claims all arise out of their losses suffered when [the defendant bank] transferred the [funds].... Were it not for the alleged unauthorized transfer, [plaintiffs] could not be heard to complain as they would have suffered no damages .... [Plaintiffs] cannot compartmentalize and detach [their] state causes of action simply because certain of [defendant’s] activities occurred before the transfer when such causes of action would not have been available minus the resulting transfer. Id. at *3-*4 (paragraph break omitted). First Union is a nonbinding unpublished opinion. See 4th Cir. Local Rule 36(c). We moreover find First Union's reasoning unpersuasive. We think the better approach to a question of Regulation J preemption, as Donmar instructs, is to determine straightforwardly whether a state law cause of action is inconsistent with or duplicative of the rules established in Subpart B of Regulation J. . Contrary to Eisenberg's arguments, Sun 'n Sand, Inc. v. United California Bank, 21 Cal.3d 671, 148 Cal.Rptr. 329, 582 P.2d 920 (1978), is not analogous to this case. In that case a Sunn Sand employee fraudulently deposited company checks into a personal bank account at United California Bank (\"UCB”). Id. at 335. Sun’n Sand sued the bank for negligently allowing the employee, who was not the payee on the checks, to deposit the checks into her account. Although Sun 'n Sand was not a UCB customer, the California Supreme Court held that the bank had a limited duty of inquiry based on the highly suspicious acts of the employee. Id. at 344-45. The court stressed that the duty it was recognizing was \"narrowly circumscribed: it is activated only when checks, not insignificant in amount, are drawn payable to the order of a bank and are presented to the payee bank by a third party seeking to negotiate the checks for" }, { "docid": "16516272", "title": "", "text": "and comprehensive national regulation of Fedwire transfers.” Donmar, 64 F.3d at 949. By its own terms, Regulation J “supersedes or pre-empts inconsistent provisions of state law.” Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A (2002). We held in Donmar that Regulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Sub-part B. 64 F.3d at 949-50. Determining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state claim would be covered under Subpart B as well. Eisenberg’s negligence claims focus on several aspects of Wachovia’s conduct in establishing Reid’s account and crediting Eisenberg’s funds transfer to that account. One instance of alleged negligence involves Wachovia “accepting and crediting the Wire Transfer to Mr. Reid’s account when the wire instructions designated ‘Bear Stearns’ as the intended recipient.” Eisenberg addressed the Fedwire transfer to “Wachovia Bank,” “Beneficiary Account 1861296138,” “For Further Credit to BEAR STEARNS.” Subpart B applies here. When a transfer order identifies the beneficiary by an account number, the receiving bank may rely on the account number in crediting the account even though the transfer order identifies a person different from the holder of the account. See 12 C.F.R. § 210.27 (2002). Wachovia properly processed Eisenberg’s funds transfer order under the standards of Sub-part B. Wachovia is not liable under Subpart B for the manner in which it received and credited Eisenberg’s Fedwire funds transfer. Any state law claim that is premised on this same conduct would be either du-plicative of or contradictory to Regulation J and is thus preempted. Eisenberg’s negligence claims are preempted insofar as they challenge Wachovia’s Fedwire transfer processing. Eisenberg contends, however, that his negligence claims primarily challenge not the wire transfer processing but rather Wachovia’s conduct in allowing Reid to open and operate the bank account under the name “dba Bear Stearns.” The Fed-wire transfer, according to Eisenberg, is only incidental to his negligence claims. Eisenberg thus urges that his negligence claims are" }, { "docid": "2617348", "title": "", "text": "alleging “erroneous execution of a Fedwire funds transfer ... the provisions of Regulation J exclusively apply to the fund transfer.” Grossman, 225 F.3d at 1232. In Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220 (4th Cir.2002), the Fourth Circuit specifically considered whether Regulation J completely preempts any state law claims arising from erroneous execution of a Fedwire funds transfer. The Fourth Circuit examined its holding in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995), and stated that “[b]y its own terms, Regulation J ‘supersedes or pre-empts inconsistent provisions of state law.’ ” Eisenberg, 301 F.3d at 223 (citing Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A. (2002)). The Eisenberg court then added that “[rjegulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Subpart B.” Id. (citing Donmar 64 F.3d at 949-50). Finally, the court added that “[djetermining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state, claim would be covered under Subpart B as well.” Id. In Eisenberg, the court held that: Wachovia properly processed Eisenberg’s funds transfer order under the standards of Subpart B. Wachovia is not liable under Subpart B for the manner in which it received and credited Eisenberg’s Fedwire funds transfer. Any state law claim that is premised on this same conduct would be either duplicative of or contradictory to Regulation J and is thus preempted. Id. The Eisenberg court added that the only claims that are not preempted by Regulation J are claims where the Fedwire transfer “is only incidental” to the claims in the complaint. Id. In Mr. Bensman’s case, however, his complaint for damages under Fla. Stat. § 670.204 specifically alleges that defendants are liable because they “wire transferred [funds] from Plaintiff Bensman’s custodial account to Rx Remedy without authorization.” Pi’s. Compl. at ¶¶ 129-31. In this case, Mr. Bensman is specifically alleging that Citibank is liable “for the manner in which" }, { "docid": "10424167", "title": "", "text": "on appeal. First, Donmar claims that an issue of fact exists as to who was the beneficiary of the wire transfers and argues that both it and Stephen’s were joint beneficiaries and that Southern National was obligated, pursuant to Regulation J’s adoption of section 4A-404(a) of the U.C.C., to pay them as joint beneficiaries. See Part I, supra. Second, Donmar argues that Southern National was required to refuse to accept the wire transfer, since the designation STC/Donmar was an unidentifiable or nonexistent beneficiary under Regulation J’s section 4A-207. Third, Donmar argues that the district court erred in determining that Regulation J pre-empted its state law causes of action in this case. III. Our review of a summary judgment is de novo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 67, 68, 130 L.Ed.2d 24 (1994). Since the provisions of Regulation J are applicable to this case, a review of those regulations and the context in which they arose is appropriate. As of January 1,1991, the Federal Reserve Board revised Subpart B of Regulation J to apply the provisions of U.C.C. Article 4A to funds transfers handled by Federal Reserve banks. The official commentary to the U.C.C. provisions in Regulation J, Subpart B provide that the official comments to U.C.C. Article 4A, while not incorporated in Subpart B or its official commentary, may nonetheless “be useful in interpreting Article 4A.” Recently, electronic funds transfers, also known as wire transfers, have become increasingly utilized by businesses and financial institutions to effect payments and transfers of a vast volume of funds. The success of funds transfer systems is predicated on speed, efficiency, high volume, low cost, certainty, and finality. The drafters of the U.C.C. considered these factors in assessing liabilities under Article 4A: This system of pricing may not be feasible if the bank is exposed to very large liabilities in connection with the transaction.... A major policy issue in the drafting of Article 4A is that of determining how risk of loss is to be allocated given the price structure in the industry. U.C.C. §" }, { "docid": "17565", "title": "", "text": "state law claims because it held that those claims were preempted by Article 4A. “We may, however, affirm the grant of summary judgment on any ground fairly supported by the record.” Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc., 222 F.3d 895, 900 (11th Cir.2000). “[Pjarties whose conflict arises out of a funds transfer should look first and foremost to Article 4-A for guidance in bringing and resolving their claims.... ” Sheerbonnet, Ltd. v. Am. Express Bank, Ltd., 951 F.Supp. 403, 407 (S.D.N.Y.1995). Regions’s claims are based on Mornings-tar’s direction to Fleet Bank to transfer funds, illegally obtained from Regions, to Morningstar’s DDA at Provident. Because the wire transfers at issue here occurred via the Federal Reserve Wire Transfer Network, or “Fedwire,” which is owned and operated by the Federal Reserve Banks, Subpart B of Federal Reserve Regulation J (“Regulation J”), 12 C.F.R. §§ 210.25-210.32, applies. See id. § 210.25(a) (“This subpart provides rules to govern funds transfers through Fed-wire .... ”). Moreover, Regulation J “incorporates the provisions of Article 4A” of the U.C.C. as set forth in the Regulation, id. § 210.25(b)(1), and “governs the rights and obligations of,” inter alia, “parties to a funds transfer any part of which is carried out through Fedwire.... ” Id. § 210.25(b)(2)(v). See also Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1232 (11th Cir.2000) (per curiam) (“Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire.”). Accordingly, the provisions of Article 4A, as incorporated to funds transfers using Fedwire via Regulation J, apply to the circumstances before us. Section 4A-103 of Article 4A defines various terms that are used within the Article such as payment order , beneficia-ry , beneficiary’s bank , receiving bank , and sender . Under Article 4A, Provident was the beneficiary’s bank and the receiving bank when it received the payment order from Fleet Bank, the sender, on behalf of Morningstar, the beneficiary. The rules that emerged during the drafting of the U.C.C. “are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered" }, { "docid": "2617346", "title": "", "text": "Furthermore, the Eleventh Circuit has recognized that “[cjomplete preemption occurs when federal law so occupies a given field that a state-law claim is transformed into a claim ‘arising under’ federal law.” Id. (citing Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1353 (11th Cir.2003)). “In other words, ‘if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.’ ” Id. (quoting Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841). B. Preemption of Mr. Bensman’s Fla. Stat. § 670,204 Claim By Federal Law Mr. Bensman asserts that his case should be remanded to the state court because his claim under Fla. Stat. § 670.204 is not completely preempted by federal law. Fla Stat. § 670.204 specifically provides, in relevant part: [i]f a receiving bank accepts a payment order issued in the name of its customer as sender which is not authorized and not effective as the order of the customer under section 670.202 or is not enforceable, in whole or in part, against the customer under 670.203 the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund.... In this case, Mr. Bensman alleges that the defendants are strictly liable under section 670.204 to return $4.5 million of funds that were wired without authorization during the period encompassing January through March of 2000. Defendants contend that removal jurisdiction is proper in this case because Mr. Bensman’s wire transfer claim is completely preempted by Subpart B of Federal Reserve Regulation J (12 C.F.R. §§ 210.25-210.32). These regulations govern wire transfers made via the Federal Reserve Wire Transfer Network (“Fed-wire”). See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1229 (11th Cir.2000) (explaining Fedwire system). In Gross-man, though the Eleventh Circuit did not specifically address the issue of complete preemption, the court recognized that in cases" } ]

[ { "docid": "17206966", "title": "", "text": "of law. Id. at 251-252, 106 S.Ct. at 2511-12. The party seeking summary judgment thus bears the initial burden of demonstrating to the court the absence of a genuine issue of material fact by reference to the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, supra, 477 U.S. at 322, 106 S.Ct. at 2552. The defendant asserts that the statute of limitations bars plaintiffs claims under the Federal False Claims Act. 31 U.S.C. § 3731 reads in pertinent part: “(b) A civil action under section 3730 may not be brought- (1) more than 6 years after the date on which the violation of section 3729 committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event or more than 10 years after the date on which the violation is committed.” The defendant contends that the period of limitations commences to run when an alleged “false” claim or request for payment is presented by a vendor to the United States for payment, or when there is an approval for payment by the government. See United States v. Cherokee Implement Company, 216 F.Supp. 374, 375 (N.D.Iowa 1963). Duvall however contends, and this Court agrees, that the time of payment by the United States government triggers the statute of limitations under the Act. See Blusal Meats Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986); United States v. Uzzell, 648 F.Supp. 1362, 1366-68 (D.D.C.1986). The defendant contends that all claims under the 1974 contract are time barred pursuant to the 10-year “drop dead” provision of the statute. It asserts that the last request for payment by the defendant to the Navy under the 1974 contract occurred February 23, 1977. See Affidavit of Shir-lee R. Bowden sworn to November 16, 1989, at ¶ 12. However, the time of payment remains a mystery to this Court. Neither the" } ]

[ { "docid": "22228796", "title": "", "text": "issue, on the other hand, government knowledge may be relevant to a defendant’s liability: The fact that a contractor has fully disclosed all information to the government may show that the contractor has not “knowingly” submitted a false claim, that is, that it did not act with “deliberate ignorance” or “reckless disregard for the truth.” See 31 U.S.C. § 3729(b). In some cases, the fact that government officials knew of the contractor’s actions may show that the contract has been modified or that its intent has been clarified, and therefore that the claim submitted by the contractor was not “false.” Amicus curiae brief of the United States at 16. The district court in this case also stated that it “was not persuaded by [Kreindler’s] ‘continuing fraud’ theory, i.e., that a fraudulent claim was made with the delivery of each helicopter, since the alleged defect in each helicopter was known to the government in 1979.” 777 F.Supp. at 205. This comment occurred in the aftermath of the district court’s adoption of Boisjoly, a case addressed to the issue of liability rather than the statute of limitations. In any event, the quoted statement does not reflect the law generally applicable with respect to the FCA statute of limitations. Specifically, the number of asserta-ble FCA claims is not measured by the number of contracts, but rather by the number of fraudulent acts committed by the defendant. See United States v. Bornstein, 423 U.S. 303, 311, 96 S.Ct. 523, 528-29, 46 L.Ed.2d 514 (1976); see also Ehrlich, 643 F.2d at 638 (“if a person knowingly causes a specific number of false claims to be filed, he is liable for an equal number of forfeitures”); United States v. Woodbury, 359 F.2d 370, 377-78 (9th Cir.1966) (same). Further, as to each such claim, the six-year limitations period of § 3731(b)(1) “begins to run on the date the claim is made, or, if the claim is paid, on the date of payment.” Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986) (collecting cases), aff'd, 817 F.2d 1007 (2d Cir.1987). We turn to the issue of" }, { "docid": "7928931", "title": "", "text": "U.S. 940, 102 S.Ct. 474, 70 L.Ed.2d 247 (1981). Furthermore, a separate claim for liability under the False Claims Act exists with respect to each monthly mortgage subsidy claim submitted by Lend-Mor. In United States v. Ehrlich, supra, the Ninth Circuit held that each monthly demand for payment submitted to HUD by an innocent mortgagee constituted a separate False Claims Act violation, where the underlying contract was entered into based on defendant’s misrepresentations. This holding was implicitly adopted by the Second Circuit in U.S. ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993). In Kreindler, the court held that the number of assertable False Claims Act claims is measured by the number of fraudulent acts committed by the defendant. In support of this proposition the Kreindler court quoted Ehrlich, 643 F.2d at 638 (“if a person knowingly causes a specific number of claims to be filed, he is liable for an equal number of forfeitures”), as well as United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976). The Village Defendants argue that the Kreindler court’s reliance on Bomstein compels a conclusion that the demand for mortgage subsidies are not claims within the meaning of the False Claims Act. This reading of Bomstein is incorrect. In Bomstein, a subcontractor had supplied defective radio tubes to a prime contractor who was supplying radios to the government. The tubes, which were supplied under three invoices, were used to assemble radio kits which the prime contractor then supplied to the government under thirty-five invoices. In holding that the subcontractor could only be liable for three, rather than thirty-five, violations of the False Claims Act, the Supreme Court noted that the number of claims submitted by the prime contractor was “completely fortuitous and beyond [the subcontractor’s] knowledge or control.” 423 U.S. at 312, 96 S.Ct. at 529. Thus, Bomstein did not recharacterize the invoices submitted by the innocent prime contractor as something other than claims, but limited the number of penalties to" }, { "docid": "11945309", "title": "", "text": "giving rise to its FCA and common law claims prior to January 29, 2008, or three years prior to the tolled period.” (Compl. at ¶¶ 18-19.) DynCorp’s argument is that the “official” in § 3731(b)(2) need not be a DOJ official, and the government has failed to allege that no official with responsibility knew or reasonably should have known about the facts. (Def.’s Mem. at 38-44.) It follows, DynCorp says, that the government is constrained by the six-year statute of limitations in § 3731(b)(1), and thus, claims related to invoices submitted before January 29, 2005 (six years before the effective date of the tolling agreement) are untimely. (Id. at 44.) Most courts have concluded that “the official of the United States charged with responsibility to act in the circumstances,” 31 U.S.C. § 3731(b)(2), must be an official from the Department of Justice. See United States v. Wells Fargo Bank, N.A., 972 F.Supp.2d 593, 606-08 (S.D.N.Y. 2013); United States v. Carell, 681 F.Supp.2d 874, 881-82 (M.D. Tenn. 2009); United States v. Tech Refrigeration, 143 F.Supp.2d 1006, 1009 (N.D. Ill. 2001); United States v. Inc. Vill. of Island Park, 791 F.Supp. 354, 361-64 (E.D.N.Y. 1992). A major reason for this interpretation is that the False Claims Act makes the Attorney General responsible for investigating and prosecuting violations. 31 U.S.C. § 3730(a); see, e.g., Tech Refrigeration, 143 F.Supp.2d at 1009. However, one of these courts emphasized that there was “patently inconsistent authority,” Island Park, 791 F.Supp. at 363, and another opted for the narrow interpretation of “official” because ambiguous statutes of limitations should be construed in favor of the government, Carell, 681 F.Supp.2d at 882. One judge concluded that senior army officials did qualify as officials charged with responsibility, although the relator had not argued that only DOJ officials should qualify, and the Second Circuit held that the court should have dismissed the case for lack of subject matter jurisdiction without reaching the statute of limitations. See United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 777 F.Supp. 195, 204-05 (N.D.N.Y. 1991), affirmed on other grounds by 985 F.2d 1148 (2d" }, { "docid": "15569895", "title": "", "text": "government’s eases do not support the proposition for which they are cited. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993), is factually distinguishable and deals with the qui tarn provisions of the False Claims Act. It contains no analysis of the government’s proposition and cites only Blusal Meats, Inc. v. United States, 638 F.Supp. 824 (S.D.N.Y.1986). The opinion in Blusal Meats announces, again without analysis, that “the six-year limitations period under the False Claims Act begins to run on the date the claim is filed or, if the claim is paid, on the date of the payment.” Id. at 829. That ambiguous holding, in turn, recites its rebanee upon three cases: Jankowitz v. U.S., supra at 545, whose holding appears to favor default or presentment over payment as the trigger for the statute of limitations; U.S. v. Cripps, 451 F.Supp. 598, 600 (E.D.Mich.1978), where Chief Judge Kennedy found it “clear that the statute of limitations period began to run on the date each voucher was presented to HUD for payment”; and U.S. v. Klein, 230 F.Supp. 426 (W.D.Pa.1964), aff'd 356 F.2d 983 (3d Cir.1966), whose ambiguous holding is that “until the Government had to pay under its guarantee program, the statute did not begin to run.” (emphasis added). A recent decision of the First Circuit provides analysis that is both helpful and persuasive. U.S. v. Rivera, 55 F.3d 703 (1st Cir.1995), was a False Claims Act case brought against officers of a hospital in Puer-to Rico for fraudulently diverting the proceeds of a federally insured mortgage loan. The hospital defaulted on the loan and filed a bankruptcy petition. The lender declared the loan in default and presented HUD with a formal application for insurance benefits. The False Claims Act suit was filed more than six years after all of these events—but it was filed six years to the day after the lender formally assigned its mortgage on the hospital’s property to the government, thereby complying with a condition precedent to HUD’s obligations to" }, { "docid": "3141815", "title": "", "text": "will focus our analysis there as well. We begin with the language of the False Claims Act. The statute provides that a civil action under § 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b). “The six-year limitations period begins to run ‘on the date the claim is made, or if the claim is paid, on the date of the payment.’ ” United States ex rel. Kreindler & Kreindler v. United Technologies, Corp., 777 F.Supp. 195, 200 (N.D.N.Y.1991) (quoting Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff'd, 817 F.2d 1007 (2d Cir.1987)). See also Jana, Inc. v. United States, 41 Fed.Cl. 735, 743 (1998) (when the government pays a false claim, the FCA statute of limitations begins to run on the date of final payment). The complaint, however, does not identify the dates of Amtrak’s payments; it says only that the scheme spanned from 1990 through 1995. These allegations do not permit dismissal of the complaint under Rule 12(b)(6). A contention that the statute of limitations bars an action is an affirmative defense, meaning that the plaintiff is not required to negate it in its complaint. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). If the complaint alleged facts demonstrating that the tolling provision does not apply, the government would have pleaded itself out of court, requiring dismissal of the complaint. See Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (1993). The government’s complaint has no such allegations, and it is not required to have any: as the Seventh Circuit said in Tregenza, “it does not follow from the fact that" }, { "docid": "22040081", "title": "", "text": "(1st Cir.1986). The applicable statute of limitations for both counts of the indictment is six years. See 26 U.S.C.A. § 6531(2),(6) (West 1989). The limitations period for a violation of § 7201 begins to run on the date of the last affirmative act of tax evasion. See Ferris, 807 F.2d at 271-72; United States v. Bartrug, 777 F.Supp. 1290, 1292 (E.D.Va. 1991), aff'd on other grounds, 976 F.2d 727 (4th Cir.1992). The limitations period for a violation of § 7212(a) similarly begins to run on the date of the last corrupt act. Cf. United States v. Workinger, 90 F.3d 1409, 1412-14 (9th Cir. 1996) (holding that the statute of limitations did not bar the defendant’s § 7212(a) prosecution where the defendant committed the last corrupt act within six years of the indictment). Thus, in the instant case, the government had to prove that Wilson committed an affirmative act in furtherance of the two charges in the indictment on or after April 1,1989. The government introduced sufficient evidence at trial that Wilson committed an unlawful act within the limitations period. Rogers and McKinney testified that the two payments that Wilson made to McKinney in 1988 were for Rogers’s share of the Windfall dividends. Both also testified that neither payment was a loan. Rogers testified that he could not remember when he signed the two false notes. However, McKinney clearly testified that she, Rogers, and Wilson executed the false notes that Wilson prepared after October 24,1989 when they first learned that the IRS was criminally investigating Rogers. As noted above, the jury could infer that Wilson’s action violated § 7212(a) and § 7201. Since the action occurred within the limitations period, the district court properly denied Wilson’s motion for a judgment of acquittal on statute of limitations grounds. IV. Wilson finally argues that the district court erred in denying his motion for a new trial. He argues that the district court should have granted a new trial on three grounds. We address each of his arguments in turn. A. Wilson first contends that the district court should have granted his motion for" }, { "docid": "3141828", "title": "", "text": "same reasons noted in the preceding paragraph with regard to the FCA claim. Conclusion For the reasons explained above, the Court denies defendants’ motion to dismiss [Item 8-1], . Under either scenario, it would appear that the government’s claim based on Tech’s initial false claim is time-barred. The claim was paid, at the latest, in January 1990; this suit was filed more than ten years later. Even if tolling is permitted under § 3731(b)(2), the statute provides that suit must be filed no more than ten years after the violation. . The court in United States v. Incorporated Village of Island Park, 791 F.Supp. 354, 363 (E.D.N.Y.1992), indicated that in at least one case, an action under the FCA was brought by a government corporation in its own name. See Federal Crop Insurance Corp. v. Hester, 765 F.2d 723 (8th Cir.1985). This does not undermine our construction of the statute. The issue was not raised in Hester, and in any event there is nothing in the FCA that would preclude the Attorney General, after learning of the material facts, from delegating to another government agency the authority to bring a particular FCA claim. . The Kreindler decision is of limited prece-dential value; in affirming, the Second Circuit stated that the district court should not have reached the limitations issue. See United States ex rel. Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155 (2d Cir.1993)." }, { "docid": "8662517", "title": "", "text": "In that count the government alleges that during 1976 to 1978 Saltiel and Blumhof violated the FCA, § 3729(3), by conspiring together and with others to defraud the United States by getting false claims allowed or paid. (Complaint II, ¶ 13.) The government argues that in applying the FCA statute of limitations in § 3731(b) to violations of the FCA conspiracy provision, the “last overt act” rule should apply. That rule is applied to the federal five-year criminal statute of limitations, 18 U.S.C. § 3282, and provides that a defendant may be punished for participating even earlier in a conspiracy so long as one overt act in furtherance of the conspiracy occurred within five years of the filing of the indictment. See Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957); United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982). However, the last overt act rule is not applicable to actions for civil conspiracy. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 549-551, 63 S.Ct. 379, 386-388, 87 L.Ed. 443 (1943) (claim for civil penalty under FCA is civil, not criminal in nature). Under § 3729(3) the act which begins the running of the limitations period is the formation of the conspiracy. The fact that acts in furtherance of the conspiracy alleged in this case may have occurred within six years of the government’s suit does not alter the application of the limitations period to the 3729(3) claim. The principle is well settled in this circuit that the occurrence of an act in furtherance of a civil conspiracy within the limitations period does not render every related but otherwise time barred conspiratorial act actionable. See Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.1956); Rodrigues v. Village of Larchmont, New York, 608 F.Supp. 467, 477 n. 11 (S.D.N.Y.1985); Chodos v. Federal Bureau of Investigation, 559 F.Supp. 69, 74 (S.D.N.Y.), aff'd mem., 697 F.2d 289 (2d" }, { "docid": "15026797", "title": "", "text": "the government knew or should have known of the violation. The Act provides: A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b) (1986). The six-year limitations period begins to run “on the date the claim is made or, if the claim is paid, on the date of the payment.” Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff’d, 817 F.2d 1007 (2d Cir.1987). As the statute states, the three-year limitations period begins to run from the date “when facts material to the right of action are known or reasonably should have been known” by the government official responsible for such information. UTC maintains that the relator’s fraud claims can, at most, extend to the first 115 Black Hawk helicopters delivered by UTC, since those were the only aircraft delivered with the faulty Fafnir bearing design. UTC contends it ceased using the Fafnir bearing in 1980, and that in 1979 the Army was aware of this design problem and informed its personnel that they must disconnect the pitch control rods before folding the rotor blades. Thus, since 1979, UTC argues, the Army knew of the facts material to relator’s claim, and there was no hidden defect. Consequently, the defendant contends, since the government was aware of the alleged defect in 1979, it has no claim under the False Claims Act, since an essential element is that the claim be false or fraudulent. See Boisjoly v. Morton Thiokol, Inc., 706 F.Supp. 795, 808 (D.Utah 1988). The relator apparently concedes in its responding memorandum that claims based on the first 115 helicopters are barred by" }, { "docid": "7928933", "title": "", "text": "which the subcontractor could be liable as a result of those claims. Furthermore, the reasoning of Bomstein is inapplicable in determining the number of False Claims Act violations in the instant case in which the fraudulent conduct and false statements of the Village caused the innocent mortgagee to submit a readily ascertainable number of claims for mortgage payments. The facts in this case parallel those in Ehrlich, in which the defendant’s original fraudulent act caused HUD to enter into a contract with an innocent mortgagee, pursuant to which HUD was required to pay monthly mortgage subsidies. The Ninth Circuit explained: [Bomstein] suggests that, if a person knowingly causes a specific number of false claims to be filed, he is liable for an equal number of forfeitures. In the absence of such knowledge, using the number of claims to determine the number of forfeitures would be arbitrary. Where such knowledge is present, however, it is consistent with the purposes of the Act to impose forfeitures based on the number of claims. 643 F.2d at 638. Kreindler adopts the Ninth Circuit’s interpretation of Bomstein, quoting the very language which compels the conclusion that the Village Defendants are liable for a separate False Claims Act violation for each claim for a mortgage subsidy which the innocent mortgagee submitted as a result of the Village’s fraudulent conduct, notwithstanding the Village Defendants’ attempt to recharacterize those claims as “contracts.” February 11, 1993 Letter, p. 4. Furthermore, under Kreindler, “as to each such claim [for payment of a mortgage subsidy], the six-year statute of limitations period of § 3731(b)(1) ‘begins to run on the date the claim is made, or, if the claim is paid, on the date of payment.’” Supra, at 1157 (quoting Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff'd 817 F.2d 1007 (2d Cir.1987)). Thus, the government’s claims under the False Claims Act are timely with respect to each claim for a mortgage subsidy payment, and each pay ment of CDBG funds to the Village, after March 22, 1984. Kreindler also held that the government’s knowledge of the falsity" }, { "docid": "8662512", "title": "", "text": "States v. Martino, 664 F.2d 860, 876 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). Since the government’s counterclaim does not allege the existence of any agreement to get a false claim allowed or paid, its claim under § 3729(3) must be dismissed. Blusal’s motion for partial summary judgment on the statute of limitations is also granted. Blusal argues that since the government’s counterclaim was filed on February 17, 1984, under the FCA six-year statute of limitations, 31 U.S.C. § 3731(b), the counterclaim must be dismissed with respect to any FCA violations which took place before February 17, 1978. The government contends that its counterclaim arises out of the same transactions which underlie Blusal’s complaint, and so relates back to November 28, 1983, the date the complaint was filed, for statute of limitations purposes. The government’s counterclaim does not relate back to Blusal’s complaint. Even assuming that the counterclaim arises out of the same transactions which were the basis of Blusal’s claims, a generous assumption since Blusal’s complaint primarily challenges the procedure followed in the administrative hearing rather than its outcome, it has been uniformly held that the FCA six-year limitations period is not tolled by the claimant’s institution of a suit against the United States related to the false claims. See e.g., Erie Basin Metal Products, Inc. v. United States, 150 F.Supp. 561, 564-565, 138 Ct.Cl. 67 (1957); Canned Foods, Inc. v. United States, 146 F.Supp. 470, 472, 135 Ct.Cl. 862 (1956); see also United States v. Borin, 209 F.2d 145, 147-148 (5th Cir.), cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed 647 (1954) (FCA limitations period jurisdictional and may not be tolled); United States v. Dawes, 151 F.2d 639, 643 (7th Cir.1945), cert. denied, 327 U.S. 788, 66 S.Ct. 808, 90 L.Ed.2d 1015 (1946) (same); Klein, 230 F.Supp. at 441 (same); United States v. MacEvoy, 10 F.R.D. 323, 325 (D.N.J.1950) (same). The cases cited by the defendants are inapposite. In E.W. Bliss Co. v. Cold Metal Process Co., 156 F.Supp. 63 (N.D.Ohio 1957), aff'd in part and rev’d in part" }, { "docid": "3141814", "title": "", "text": "MEMORANDUM OPINION AND ORDER KENNELLY, District Judge. The United States government sued Tech Refrigeration, its president Diane Kulaski, and its general manager Thomas Kulaski, for defrauding Amtrak. The government alleges that the defendants, along with Raymond Corcoran, a former Amtrak employee who headed Amtrak’s project to redevelop Chicago’s Union Station, bilked Amtrak out of tens of thousands of dollars through an over-billing and kickback scheme. It claims that Tech submitted fraudulent claims totaling $87,800 and kicked back just over $52,000 to Corcoran. In October 1999, Corcoran pled guilty to mail fraud. The government filed this suit, along with several others against other contractors who allegedly engaged in similar schemes with Corcoran, in June 2000. The complaint alleges violations of the False Claims Act, 31 U.S.C. §§ 3729(a)(1), (2) and (3), as well as common law claims of payment by mistake and unjust enrichment. The defendants have moved to dismiss under Rule 12(b)(6), arguing that the claims are barred by the statute of limitations. The parties have discussed only the False Claims Act claim, so we will focus our analysis there as well. We begin with the language of the False Claims Act. The statute provides that a civil action under § 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b). “The six-year limitations period begins to run ‘on the date the claim is made, or if the claim is paid, on the date of the payment.’ ” United States ex rel. Kreindler & Kreindler v. United Technologies, Corp., 777 F.Supp. 195, 200 (N.D.N.Y.1991) (quoting Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff'd, 817 F.2d 1007 (2d Cir.1987)). See also" }, { "docid": "8662515", "title": "", "text": "strictly enforced FCA limitations period to the government’s counterclaims brought in 1984. Since the government’s counterclaim does not relate back, Blusal is entitled to partial summary judgment in Action I. The six-year limitations period under the FCA begins to run on the date the claim is made or, if the claim is paid, on the date of the payment. Jankowitz v. United States, 533 F.2d 538, 545, 209 Ct.Cl. 489 (1976); Cripps, 451 F.Supp. at 600; Klein, 230 F.Supp. at 441. Accordingly, the government’s counterclaim is dismissed with respect to those claims based upon food stamp redemption payments made to Blusal before February 17, 1978, and, if payment was not made, food stamp redemption claims presented by Blusal before February 17, 1978. Action II Saltiel’s motion to dismiss the government’s complaint in Action II in its entirety is denied. The three causes of action pleaded track the statutory language and include allegations of all the elements of claims under the FCA, § 3729(1H3). The government’s complaint in Action II was filed on December 17, 1984. The second cause of action alleges that between April, 1976 and December, 1978 Saltiel and Blumhof violated the FCA, § 3729(1), by causing ineligible food stamps to be presented to the United States for redemption. (Complaint II, ¶ 20.) The third cause of action alleges that between April, 1976 and December, 1978 the same defendants violated the FCA, § 3729(2), by causing false statements to be made by others in order to redeem ineligible food stamps. (Complaint II, ¶ 22.) For the reasons set forth above with respect to Action I, Saltiel’s motion for partial summary judgment on the statute of limitations with respect to the second and third causes of action asserted against him in Action II is granted. Those actions are dismissed with respect to claims based upon food stamp redemption payments made to Blusal before December 17, 1978, and, if payment was not made, food stamp redemption claims presented by Blusal before December 17, 1978. Saltiel is also entitled to partial summary judgment on the first cause of action in Action II." }, { "docid": "8662514", "title": "", "text": "on other grounds, 285 F.2d 231 (6th Cir.1960), the counterclaim was not made under the FCA, and the court applied Ohio law on the relation back of the counterclaim. In United States v. Capital Transit Co., 108 F.Supp. 348 (D.D.C.1952), the court held that when the United States brings a tort action more than two years after the accident which forms the basis of its suit, the defendant’s counterclaim based on the same accident would not be barred by the two-year limitations period in the Federal Tort Claims Act. The court’s decision rested on the liberal construction customarily applied to the Tort Claims Act, and on an equitably implied waiver by the government of its right to assert a limitations defense when it sues more than two years after both parties’ actions accrued. Id. at 349-350; see also United States v. Southern Pacific Co., 210 F.Supp. 760 (N.D.Cal.1962). By contrast in this case, where it was the government which acted first in 1980 by bringing its administrative proceeding, it is not unfair to apply the strictly enforced FCA limitations period to the government’s counterclaims brought in 1984. Since the government’s counterclaim does not relate back, Blusal is entitled to partial summary judgment in Action I. The six-year limitations period under the FCA begins to run on the date the claim is made or, if the claim is paid, on the date of the payment. Jankowitz v. United States, 533 F.2d 538, 545, 209 Ct.Cl. 489 (1976); Cripps, 451 F.Supp. at 600; Klein, 230 F.Supp. at 441. Accordingly, the government’s counterclaim is dismissed with respect to those claims based upon food stamp redemption payments made to Blusal before February 17, 1978, and, if payment was not made, food stamp redemption claims presented by Blusal before February 17, 1978. Action II Saltiel’s motion to dismiss the government’s complaint in Action II in its entirety is denied. The three causes of action pleaded track the statutory language and include allegations of all the elements of claims under the FCA, § 3729(1H3). The government’s complaint in Action II was filed on December 17, 1984." }, { "docid": "7928930", "title": "", "text": "the claim as finally paid by the Government ...” when that claim is filed with the government. United States v. Klein, 230 F.Supp. 426, 442 (W.D.Pa.1964), aff'd, 356 F.2d 983 (3rd Cir. 1966). The allocation of the Section 235 houses pursuant to the fraudulent course of conduct described above resulted in the approval of HUD-subsidized mortgages with respect to those houses. When claims for payment on those mortgages are submitted by the innocent mortgagees, the fraudulent course of conduct pursuant to which the mortgages were approved emerge in “full vigor” and become a part of those claims, which therefore constitute false claims within the meaning of the False Claims Act. It is irrelevant that Lend-Mor, the lender who submitted the claims for mortgage subsidies is totally innocent. United States ex rel. LaValley v. First National Bank of Boston, 707 F.Supp. 1351, 1352 (D.Mass.1988); United States v. Goldberg, 256 F.Supp. 540, 541-42 (D.Mass.1966); United States v. Stillwater Community Bank, 645 F.Supp. 18, 19 (W.D.Okla.1986); United States v. Ehrlich, 643 F.2d 634 (9th Cir.) cert. denied, 454 U.S. 940, 102 S.Ct. 474, 70 L.Ed.2d 247 (1981). Furthermore, a separate claim for liability under the False Claims Act exists with respect to each monthly mortgage subsidy claim submitted by Lend-Mor. In United States v. Ehrlich, supra, the Ninth Circuit held that each monthly demand for payment submitted to HUD by an innocent mortgagee constituted a separate False Claims Act violation, where the underlying contract was entered into based on defendant’s misrepresentations. This holding was implicitly adopted by the Second Circuit in U.S. ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993). In Kreindler, the court held that the number of assertable False Claims Act claims is measured by the number of fraudulent acts committed by the defendant. In support of this proposition the Kreindler court quoted Ehrlich, 643 F.2d at 638 (“if a person knowingly causes a specific number of claims to be filed, he is liable for an equal number of forfeitures”), as well" }, { "docid": "15569894", "title": "", "text": "States, 533 F.2d 538, 545, 209 Ct.Cl. 489 (1976). But whether it is the default, the demand for reimbursement or the actual payment that completes the violation for statute of limitations purposes has been less than clear. There are no D.C. Circuit cases on point. The government acknowledges that the “usual” rule emerging from the McNinch line of cases is that the statute of limitations “begins to run when the bank or other third party or other intermediary presents the claim to the government for payment under its guarantee, rather than the date of false statement or the date of default.” The government argues, however, that the “usual” rule does not apply in the case at bar because the government’s obligation to make guarantee payments on the River Capital debentures arose, and the payments were made, “without formal demand or the presentation of a claim” and simply by operation of the SBA’s own rules. Therefore, the government argues, “the statute of limitations does not begin to run until the government actually pays the claim.” The government’s eases do not support the proposition for which they are cited. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993), is factually distinguishable and deals with the qui tarn provisions of the False Claims Act. It contains no analysis of the government’s proposition and cites only Blusal Meats, Inc. v. United States, 638 F.Supp. 824 (S.D.N.Y.1986). The opinion in Blusal Meats announces, again without analysis, that “the six-year limitations period under the False Claims Act begins to run on the date the claim is filed or, if the claim is paid, on the date of the payment.” Id. at 829. That ambiguous holding, in turn, recites its rebanee upon three cases: Jankowitz v. U.S., supra at 545, whose holding appears to favor default or presentment over payment as the trigger for the statute of limitations; U.S. v. Cripps, 451 F.Supp. 598, 600 (E.D.Mich.1978), where Chief Judge Kennedy found it “clear that the statute of limitations period began to" }, { "docid": "15026796", "title": "", "text": "relator, and makes him or her a real party in interest pursuant to Fed.R.Civ.P. 17. Id. at 1098-99. Second, since the relator often has access to the information forming the basis of his claim only through his employment relationship, he or she faces the prospect of loss of employment and benefits if the fraud is disclosed. Id. at 1099. Finally, to the extent the relator is a knowing participant in the fraud and fails to act on it, he or she may be liable in a False Claims Act prosecution. Id. Although the second and third reasons are not applicable to the relator here, since it was not an employee of the defendant, the statutory bounty creates an additional basis for relator’s standing. B. STATUTE OF LIMITATIONS Defendant moves for summary judgment on the ground that the statute of limitations has run on relator’s claim. The applicable limitations period for a false claims action is six years from the date of the violation of the False Claims Act, or three years from the date that the government knew or should have known of the violation. The Act provides: A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b) (1986). The six-year limitations period begins to run “on the date the claim is made or, if the claim is paid, on the date of the payment.” Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff’d, 817 F.2d 1007 (2d Cir.1987). As the statute states, the three-year limitations period begins to run from the date “when facts material to the right of action are known" }, { "docid": "7928934", "title": "", "text": "adopts the Ninth Circuit’s interpretation of Bomstein, quoting the very language which compels the conclusion that the Village Defendants are liable for a separate False Claims Act violation for each claim for a mortgage subsidy which the innocent mortgagee submitted as a result of the Village’s fraudulent conduct, notwithstanding the Village Defendants’ attempt to recharacterize those claims as “contracts.” February 11, 1993 Letter, p. 4. Furthermore, under Kreindler, “as to each such claim [for payment of a mortgage subsidy], the six-year statute of limitations period of § 3731(b)(1) ‘begins to run on the date the claim is made, or, if the claim is paid, on the date of payment.’” Supra, at 1157 (quoting Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff'd 817 F.2d 1007 (2d Cir.1987)). Thus, the government’s claims under the False Claims Act are timely with respect to each claim for a mortgage subsidy payment, and each pay ment of CDBG funds to the Village, after March 22, 1984. Kreindler also held that the government’s knowledge of the falsity of a claim does not automatically bar the claim for a False Claim Act violation. In rejecting the defendant’s claim that government knowledge of a claim’s falsity automatically bars any False Claims Act action, the court adopted the Ninth Circuit’s holding in United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.1991), that if the defendants knowingly presented or caused to be presented false or fraudulent claims, then it is not a defense that the government officials also knew the claims were false but continued to pay the claims. Kreindler, 985 F.2d at 1156. Although government knowledge of the relevant information may show that the defendant had made full disclosure and did not submit false claims knowingly or with reckless disregard for the truth, that is not the instant case. The undisputed facts demonstrate that the Village Defendants knowingly caused false claims to be presented and that, after the government became aware of the underlying scheme, it continued to pay claims only because it had already become contractually bound" }, { "docid": "22228797", "title": "", "text": "the issue of liability rather than the statute of limitations. In any event, the quoted statement does not reflect the law generally applicable with respect to the FCA statute of limitations. Specifically, the number of asserta-ble FCA claims is not measured by the number of contracts, but rather by the number of fraudulent acts committed by the defendant. See United States v. Bornstein, 423 U.S. 303, 311, 96 S.Ct. 523, 528-29, 46 L.Ed.2d 514 (1976); see also Ehrlich, 643 F.2d at 638 (“if a person knowingly causes a specific number of false claims to be filed, he is liable for an equal number of forfeitures”); United States v. Woodbury, 359 F.2d 370, 377-78 (9th Cir.1966) (same). Further, as to each such claim, the six-year limitations period of § 3731(b)(1) “begins to run on the date the claim is made, or, if the claim is paid, on the date of payment.” Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986) (collecting cases), aff'd, 817 F.2d 1007 (2d Cir.1987). We turn to the issue of subject matter jurisdiction that we deem dispositive of this appeal. C. Subject Matter Jurisdiction under 31 U.S.C. § 3730(e)(4) (1988). Section 3730(e)(4) provides in pertinent part: (A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing ... unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. (B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information. As the language of this statute makes clear, “[t]he satisfaction of ... § 3730(e)(4) is ... an issue of subject matter jurisdiction.” United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 551 (10th Cir.1992) (collecting cases), petition for cert. filed, 61 U.S.L.W. 3437 (U.S. Nov. 30," }, { "docid": "8882063", "title": "", "text": "when the false claim is submitted (current standard) or within 3 years of when the Government learned of a violation, whichever is later.\" S.Rep. No. 345, 99th Cong., 2d Sess. 15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5280; see also False Claims Act Amendments: Hearings Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm, on the Judiciary, 99th Cong., 2d Sess. 108, 118, 132 (1986). . However, the discovery that triggers 31 U.S.C. § 3731(b)(2) is not knowledge of the fraud by any government official, but knowledge of the fraud by an official having the authority to initiate litigation under the Act, generally considered to be an official at the Civil Division of the Department of Justice, which has exclusive litigating authority under the False Claims Act, 31 U.S.C. § 3730(a); see Martin J. Simko Constr., 852 F.2d at 547; United States v. Incorporated Village of Island Park, 791 F.Supp. 354, 363 (E.D.N.Y. 1992); see S.Rep. No. 345 at 30, reprinted in 1986 U.S.C.C.A.N. at 5295; see also United States v. Macomb Contracting Corp., 763 F.Supp. 272, 274 (M.D.Tenn.1990). But see United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 777 F.Supp. 195, 205 (N.D.N.Y.1991), affd on other grounds, 985 F.2d 1148 (2nd Cir.1993). Since the statute of limitations applicable to a violation not discovered until more than three years after the violation is three years, under § 3731(b)(2), and not six years, as defendant argues, it becomes very relevant whether defendant’s FCA counterclaims were “discovered” on April 26, 1990. . To the extent the counterclaims are for costs also asserted in the January 3, 1994 certified claims, the counterclaims are coterminous with counterclaims six and thirteen, which are discussed infra." } ]

[ { "docid": "13425367", "title": "", "text": "of its promise to excavate to solid ledge. These cases are Hollerbach v. U. S., 233 U. S. 165, 34 S. Ct. 553, 58 L. Ed. 898; U. S. v. Spearin, 248 U. S. 132, 39 S. Ct. 59, 63 L. Ed. 166; U. S. v. Atlantic Dredging Co., 253 U. S. 1, 40 S. Ct. 423, 64 L. Ed. 735. The contractor’s undertaking was different in each one, and in none was it exactly like the defendant’s agreement in ’ the present ease. However, the result depended in no instance upon the exact language used, though at least in U. S. v. Atlantic Dredging Co., this was as broad in effect as here. All the contracts attempted to put upon the contractor the duty of. satisfying himself as to the physical conditions surrounding his work; all were held insufficient in the face of a representation made by the public authorities, who must be understood to have had a better opportunity to know. The case of Christie v. U. S., 237 U. S. 234, 35 S. Ct. 565, 59 L. Ed. 933, is akin; but there the United States kept back information which would have disclosed the truth, and the result apparently depended upon that feireumstanee. It is not quite apparent why that should not have been taken as the ground of decision in U. S. v. Atlantic Dredging. Co.; but, though it is mentioned in the opinion, we read the case as falling within the general doctrine most broadly laid down by Mr. Justice Brandeis in U. S. v. Spearin, at pages 136, 137 (39 S. Ct. 59), wbieh wo understand to bo the authoritative deelaration of the court. This understanding of the eases we share with the Circuit Coyrt of Appeals for the Third Circuit, Passaic, etc., Com’rs v. Tierney, 1 F.(2d) 304. There must, we should suppose, be some form of words by which a contractor could engage to assume all risks of the terrain, and absolutely to execute the work, notwithstanding what he might be told by the public authorities. However, it is clear that a" } ]

[ { "docid": "125415", "title": "", "text": "the holes in the area between Stations 20 and 45 simply as sandstone. Sandstone was encountered in other areas but plaintiff had' no- difficulty in excavating such material. In all other areas of the contract work, except between Stations 20 and 45, above referred to, the boring data recorded on the contract drawing correctly disclosed the subsurface conditions, and in such areas plaintiff encountered no difficulty and found that the character of the subsurface materials encountered in all areas, except between Stations 20 and 45, was as had been represented by defendant on the boring-data drawing (finding 23). However, in- the area between Stations 20 and 45, where- the defendant untruthfully represented the subsurface conditions encountered by the engineers- who-made the borings and where- plaintiff encountered -blue granite- rock, the evidence clearly establishes that plaintiff' sustained a loss of $104,719.35, including a- reasonable profit of $35,040.77 which- plaintiff' would have made if the subsurface materials had been as represented by defendant on the boring-data drawing. The record in this case shows that defendant concealed from plaintiff material information relating to subsurface conditions and gave plaintiff erroneous and misleading information on the boring-data drawing upon which plaintiff relied in making his bid. The representations made by defendant on the core-boring data drawing were a warranty, and the knowledge and concealment from plaintiff of facts and information relating to the true character of the subsurface conditions in the area involved amounted to a misrepresentation, and constituted a breach of warranty and of the contract. In these circumstances the plaintiff is entitled to recover the damages actually sustained by him which, as stated above, we have found to be $104,719.35. United States v. Atlantic Dredging Co., 253 U. S. 1, 7, 11, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U. S. 165, 172, 34 S.Ct. 553, 58 L.Ed. 898; Christie v. United States, 237 U. S. 234, 241, 242, 35 S.Ct. 565, 59 L.Ed. 933; Virginia Engineering Co. v. United States, 101 Ct.Cl. 516, 533; Ruff v. United States, 96 Ct.Cl. 148, 162, 163; Dunbar & Sullivan Dredging Co." }, { "docid": "2518804", "title": "", "text": "contracting parties is seemingly complete, a court will not lightly imply an additional covenant enlarging its terms. Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 70 S.Ct. 392, 94 L.Ed. 393; Baumer v. Franklin County Distilling Co., 6 Cir., 135 F.2d 384, certiorari denied, 320 U.S. 750, 64 S.Ct. 54, 88 L.Ed. 446; Ferroline Corp. v. General Aniline & Film Corp., 7 Cir., 207 F.2d 912, certiorari denied, 347 U.S. 953, 74 S.Ct. 678, 98 L.Ed. 1098; Lippman v. Sears Roebuck & Co., 44 Cal.2d 136, 280 P.2d 775; Danciger Oil & Refining Co. of Texas v. Powell, 137 Tex. 484, 154 S.W.2d 632, 137 A.L.R. 408. But if it is clear from all of the pertinent parts or provisions of the contract, taken together and considered in the light of the facts and circumstances surrounding the parties at the time of its execution, that the obligation in question was within the contemplation of the parties or was necessary to carry their intention into effect, it will be implied and enforced. Sacramento Navigation Co. v. Salz, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663; Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, certiorari denied, 338 U.S. 943, 70 S.Ct. 429, 94 L.Ed. 581. The lease agreement under consideration was prepared by an attorney representing the appellants. It was comprehensive in scope, bore clear tokens of painstaking preparation, and failed to indicate or suggest an unintentional omission of any provision necessary or essential to carry into full effect the complete understanding of the contracting parties. It fixed the term for which the premises were leased; specified the rental to be paid, both in respect to amount and time of payment; obligated the lessors to keep in a tenantable condition the outside of the building; obligated the lessors to install a certain type of store front; obligated the lessee to keep in repair the interior of the building; obligated the lessors to pay the taxes and insurance premiums on the building; made provision for the operation and maintenance of the heating facilities; made provision" }, { "docid": "5894426", "title": "", "text": "commission’s engineers and some through experts, to show that this was not essentially or substantially a compressed air job and that most of it could have been done in free air by various methods such as sinking wells and pumping therefrom.” This charge was in accord with our previous ruling and sufficiently presented the issues as to liability to the jury. On this record it was shown by appellee’s- testimony and admissions by the appellant’s engineers that the specifications and supplementary specifications indicated a normal or free air job and that compressed air was not necessary except for 600 feet and, as the work progressed, it became necessary to use compressed air in its prosecution. It was shown that most of the borings had been made for the tunnel as originally designed at a higher elevation than under the final designs shown on the contract drawings. After the change of design, the engineers attempted to obtain additional borings down to the new level of the tunnel, but, due to boulders encountered and length of time required for new borings, the attempt was abandoned. It appears that most of the borings except those that struck rock were useless because they did not penetrate to the tunnel level. The county engineers did not check the work of those who prepared the boring samples which were exhibited to the contractor prior to the bidding. Appellee’s witnesses testified as to these borings that only four of them in a distance of 6,998 feet penetrated to the depth of the tunnel and they were of little or no use in determining the type of tunnel construction which would be required. Therefore the jury could have found, as they did, that these borings would not justify holding that the appellee had reliable information to indicate the contrary of the appellant’s representation that this was a free air tunnel j ob. The contract included not only the terms “set forth in express words, but, in addition, all such implied provisions as are indispensable to.effectuate the intention of the parties and as arise from the languag'e of the" }, { "docid": "1315743", "title": "", "text": "directly to the government, that is formally recognized to constitute a part of the parties’ overall undertaking. Id. (footnote omitted). As discussed above, the United States Court of Appeals for the Federal Circuit has instructed that courts should not rely merely on one document, such as the Assistance Agreement, but should focus on “contemporaneous documents and surrounding circumstances” to find whether a contract exists in these Winstar-related cases. Cal. Fed. Bank v. United States, 245 F.3d at 1346. Therefore, plaintiffs do not, necessarily, have to be signatories to a contract to be a party to it. See Centex Corp. v. United States, 52 Fed.Cl. at 603 (“Nevertheless, plaintiffs are correct that Centex does not have to be a signatory to the Agreement to be a party to it.”) (citing Tri-Cities Newspapers Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d 325, 327 (5th Cir.1970)); see also Sacramento Nav. Co. v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 71 L.Ed. 663 (1927) (“But a contract includes, not only the promises set forth in express words, but, in addition, all such implied provisions as are indispensable to effectuate the intention of the parties and as arise from the language of the contract and the circumstances under which it was made.”); Chicago, R.I. & P. RY. Co. v. Denver & R.G.R. Co., 143 U.S. 596, 609, 12 S.Ct. 479, 36 L.Ed. 277 (1892) (“There can be no doubt whatever of the general proposition that in the interpretation of any particular clause of a contract, the court is not only at liberty, but required, to examine the entire contract, and may also consider the relations of the parties, their connection with the subject-matter of the contract, and the circumstances under which it was signed.”); Woodbury v. United States, 176 Ct.Cl. 838, 850, 364 F.2d 993, 1000 (1966) (recognizing “the twin legal premises, unassailable when properly invoked, that (a) liability may be assumed under a written contract even though it is not signed by the party obligated, and that (b) terms which are plainly implied (from the circumstances) in an agreement should" }, { "docid": "21191373", "title": "", "text": "as he did here, he may recover. Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898. The appellee relies on two provisions reading: “That where material other than solid rock is encountered, containing loose sand or mud, which shifts with the water contained in it, and the Contractor chooses to use compressed air to pass through it; in order to partly relieve him of the additional cost of preventing and caring for the incoming water and material or restraining it, an allowance will be made throughout the stretch where the compressed air is actually used under the above conditions of $30.00 per foot and for not more than six hundred (600) feet of length, where actually used, regardless of whether more be used or not.” “Maximum partial compensation for labor, plant and materials under compressed air when and if actually used as specified but not in excess of 600 feet in length of tunnel and Thirty and no/100 dollars ($30.-00) per foot.” These provisions of the contract cannot be given the effect of completely negating the representations in the plans that the tunnel was primarily a free air tunnel. They might have been effective to limit appellee’s liability if the work had required somewhat more than 600 feet of compressed air, but, in point of fact, there was 6,142 feet to be so built. These causes cover a variation, not a transformation. Salt Lake City v. Smith, 104 F. 457 (C.C.A.8) ; Horgan v. Mayor of New York, 160 N.Y. 516, 55 N.E. 204. As pointed out in the Salt Lake City Case, in interpreting such clauses, the great desideratum is to ascertain the terms upon which the minds of the parties met and the sense in which they were used when the parties made the agreement. There a stipulation in the contract provided that the contractor or its engineers could make any necessary or desirable alteration in the work required and the contractor would be paid therefor at the contract rate. The" }, { "docid": "2975076", "title": "", "text": "that a Sec. 183-185 statutory “vessel” includes two or more components, each of which is a de facto, or by definition, vessel. Distinction is made in the cases between a “consensual situation” and a “pure tort” situation in concluding whether the “offending vessel” is a single one or a unitary aggregate of two or more. The Supreme Court in Sacramento Nav. Co. v. Salz, 273 U.S. 236, 47 S.Ct. 368, 71 L.Ed. 663 (1926) said “The distinction seems plain. There, (Liverpool, Brazil & River Plate Steam Nav. Co. v. Brooklyn Eastern Dist. Terminal, 251 U.S. 48, 40 S.Ct. 66, 64 L.Ed. 130, 1919), the libel was for injury to a ship in no way related to the flotilla. It was a pure tort; no contractual obligations were involved ; and the simple inquiry was, What constituted the ‘offending vessel’? Here we must ask, What constituted the vessel by which the contract of transportation was to be effected? A very different question.” In its simplest form it is stated that, in a pure tort situation — i. e. one in which there is no contractual relationship between the offender and the person or persons injured — then, the “offending vessel” is the one which really caused the damage (Liverpool). On the other hand where there is a contractual relationship the search need not be reduced to one but only to those two or more actually engaged in carrying out the contract. For example (of the latter situation) A contracts with B to dredge B’s harbor. A dedicates, to the performance a dredge and a tug and a barge and while all three are in the harbor at work, the tug knocks down B’s dock or sinks B’s vessel; in such a situation the socalled “flotilla” rule is invoked and to limit A must surrender all three of his ships as the “vessel”. They are joined into one, so say the books, by “consensuality”. See for instance, Sacramento Nav. Co. v. Salz, supra; Benedict on Admiralty, 6th Ed. Para. 495; Lake Tankers Corp., 132 F.Supp. 504 (S.D.N.Y., 1955); Deep Sea Tankers v." }, { "docid": "3454139", "title": "", "text": "where the meaning of -a contract is doubtful, the function of judicial interpretation is to ascertain the mutual intention of the parties, and when that is found it prevails over verbal inaccuracies, careless recitals, inapt expressions, or dry-words of stipulation. The court should, as far as possible, place itself in the position of the parties at the time of the execution of the agreement, and then from a consideration of the writing itself, its purposes, and the circumstances surrounding its execution endeavor to ascertain and give effect to their intention. New York Casualty Co. v. Sinclair Refining Co., 10 Cir., 108 F.2d 65. The intention of the parties, when manifest, or when ascertained from the written agreement in accordance with basic canons of interpretation, must control and be enforced unless it is directly contrary to the plain sense of the binding words of the agreement. A. Leschen & Sons Rope Co. v. Mayflower Gold Mining & Reduction Co., 8 Cir., 173 F. 855, 35 L.R.A.,N.S., 1. The cold language contained in a written agreement, standing alone, is not always controlling. General Finance Corp. v. Dillon, 10 Cir., 172 F.2d 924. That which is necessarily implied in a contract is as much a part of it as though expressly stated therein, but the implication must result from the language employed in the instrument and be indispensable to carry the intention of the parties into effect. If it is clear from all the pertinent parts or provisions of the contract taken together and considered in the light of the facts and circumstances surrounding the parties at the time of its execution, that the obligation in question was within the contemplation of the parties or was necessary to carry their intention into effect, it will be implied and enforced. Sacramento Nav. Co. v. Salz, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663. And a contract should not be so narrowly or technically interpreted as to frustrate its obvious design or so loosely construed as to relieve a party of an obligation or liability fairly within its scope or spirit. Davison Chemical Co." }, { "docid": "21201645", "title": "", "text": "himself to cooperate in the performance of his contract and the law will not permit him to take advantage of an obstacle to performance which he has created or which lies within his power to remove.” Citing Williston, supra. See also Sacramento Nav. Co. v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 71 L.Ed. 663; Guerini Stone Co. v. P. J. Carlin Constr. Co., 248 U.S. 334, 340, 39 S.Ct. 102, 63 L.Ed.2d 275; Murmanill Corporation v. Simkins, 5 cir., 251 F.2d 33, 35. . As later indicated, there is some authority indicating that this implied promise is one “not to cause performance to be delayed beyond that time by its negligence.” ' . And see also: Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814, 824, 129 P.2d 383; Straus v. Kazemekas, 100 Conn. 581, 124 A. 234, 239; Cowles v. Morris & Co., 330 Ill. 11, 161 N.E. 150, 154; Commonwealth ex rel. v. Nelson-Pedley Const. Co., 303 Pa. 174, 154 A. 383, 385; Kenan, McKay & Spier v. Yorkville Cotton Oil Co., 109 S.C. 462, 96 S.E. 524, 525, 1 A.L.R. 1387; Aetna Life Ins. Co. of Hartford v. Bidwell, 192 Tenn. 627, 241 S.W.2d 595, 597; Donovan v. McGurrin, 69 Utah 1, 251 P. 1067, 1070; Puget Sound International Ry. v. City of Everett, 103 Wash. 495, 175 P. 40, 41. . Prom United States v. Poley Co., supra: “This contract, like the others, shows that changes and delays were anticipated and provided for.” 329 U.S. at 69, 67 S.Ct, at 156. . Although the actual completion was on October 4, 1958, nothing here turns upon the fact that this was later than the August 29 date fixed in the modification order. . The Tort Claims Act, from the beginning, contained a limitation as to the time within which such claims may be brought. See 60 Stat. 842-847. The original one year limitation was subsequently extended to two years, as in § 2401(b) Title 28. Since the limitation was part of the statute creating the liability, the time is an indispensable condition of the" }, { "docid": "14204386", "title": "", "text": "amounted to ap proximately $4.20 per cubic yard, and thus totaled approximately $25,049. The plaintiff, in submitting its bid and in entering into the contract, had a right to rely upon the positive representations that were made by the defendant regarding the subsurface conditions that purportedly had been encountered in drilling holes 260 and 261. Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566, 574 (1932). Such positive representations amounted to a warranty (Atlantic Dredging Co. v. United States, 53 Ct.Cl. 490, 502, aff’d 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735 (1918)), and established a predicate for a possible action for breach of contract when it was later discovered by the plaintiff that the defendant’s representations concerning subsurface conditions at the two points were untrue (Ragonese v. United States, 128 Ct.Cl. 156, 163, 120 F.Supp. 768 (1954)). It was not incumbent upon the plaintiff, prior to submitting its bid and entering into the contract, to conduct its own investigation in order to ascertain the truth or falsity of the defendant’s positive assertions regarding subsurface conditions encountered in drilling holes 260 and 261, even though the contract contained a general condition stating that “The Contractor further acknowledges that he has satisfied himself as to the character, quality and quantity of surface and sub-surface materials to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the Government,” and also contained a technical provision stating that “the Government does not guarantee that materials other than those disclosed by the explorations [i. e., the test borings] will not be encountered.” Hollerbach v. United States, 233 U.S. 165, 172, 34 S.Ct. 553, 58 L.Ed. 898 (1914); Flippin Materials Co. v. United States, 160 Ct.Cl. 357, 365, 312 F.2d 408 (1963). A significant factor in this connection was the circumstance that the physical conditions dealt with in the defendant’s untrue representations were hidden in the subsurface, and the plaintiff could not determine the truth or falsity of the representations by mere observation. Atlantic Dredging Co. v. United States, supra, 53 Ct.Cl." }, { "docid": "17368878", "title": "", "text": "included the cost of running this power line in its estimate, having been led by the defendant to believe that no such cost would have to be incurred. Plaintiff asked the contracting officer to pay for the cost of running this line, but its request was refused. Plaintiff appealed under article 15 of the contract, but its appeal was denied by the Claims and Appeals Board, whose decision was affirmed by the Chief of Engineers. Defendant, says, that plaintiff is not entitled to recover because of the provisions of paragraph GC-2 of the specifications requiring the contractor to investigate the site, including the availability of electric power. However, - the rule is well established that where the Government makes positive statements in the specifications or drawings for the guidance of bidders, that a contractor has a right to rely on them regardless of contractual provisions requiring the contractor to make investigations. Hollerbach v. United States, 233 U.S. 165, 172, 34 S.Ct. 553, 58 L.Ed. 898; United States v. Atlantic Dredging Co., 253 U.S. 1, 11, 40 S.Ct. 423, 64 L.Ed. 735; Potashnick v. United States, 105 F.Supp. 837, 123 Ct.Cl. 197, 218; Binghamton Construction Co. v. United States, 107 F.Supp. 712, 123 Ct.Cl., 804, 836-837. We are, therefore, of the opinion that plaintiff is entitled to recover of the defendant the amount it cost plaintiff to construct the line the defendant had led it to believe it would not have to construct. Judgment will be rendered in favor of plaintiff and against defendant for the sum of $32,349:85. ' JONES, Chief Judge, and HOWELL, MADDEN, .and LITTLETON, Judges, concur." }, { "docid": "125416", "title": "", "text": "plaintiff material information relating to subsurface conditions and gave plaintiff erroneous and misleading information on the boring-data drawing upon which plaintiff relied in making his bid. The representations made by defendant on the core-boring data drawing were a warranty, and the knowledge and concealment from plaintiff of facts and information relating to the true character of the subsurface conditions in the area involved amounted to a misrepresentation, and constituted a breach of warranty and of the contract. In these circumstances the plaintiff is entitled to recover the damages actually sustained by him which, as stated above, we have found to be $104,719.35. United States v. Atlantic Dredging Co., 253 U. S. 1, 7, 11, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U. S. 165, 172, 34 S.Ct. 553, 58 L.Ed. 898; Christie v. United States, 237 U. S. 234, 241, 242, 35 S.Ct. 565, 59 L.Ed. 933; Virginia Engineering Co. v. United States, 101 Ct.Cl. 516, 533; Ruff v. United States, 96 Ct.Cl. 148, 162, 163; Dunbar & Sullivan Dredging Co. v. United States, 65 Ct.Cl. 567. ‘[2] The defendant argues that plaintiff may not recover because it did not follow the administrative procedure outlined in Article 4 of the contract entitled “Changed Conditions.” Finding 14. Under the facts in this case we are of the opinion that Article 4 does not apply, and plaintiff is not precluded from recovering the damages sustained by reason of the defendant’s misrepresentation and breach of warranty concerning subsurface condition of the contract work. Article 4 contemplates the encountering by the -contractor or the discovery by the Government during the progress of the work, subsurface and/or latent conditions at the site unknown by either the Government or the contractor at the time of the •making of the contract. In this case the defendant knew, but the plaintiff did not know, the nature and the character of the ■subsurface -conditions in the area between Stations 20 and 45. The plaintiff did not discover that defendant had in fact misrepresented the true nature of the subsurface conditions between Stations 20 and 45" }, { "docid": "3454140", "title": "", "text": "alone, is not always controlling. General Finance Corp. v. Dillon, 10 Cir., 172 F.2d 924. That which is necessarily implied in a contract is as much a part of it as though expressly stated therein, but the implication must result from the language employed in the instrument and be indispensable to carry the intention of the parties into effect. If it is clear from all the pertinent parts or provisions of the contract taken together and considered in the light of the facts and circumstances surrounding the parties at the time of its execution, that the obligation in question was within the contemplation of the parties or was necessary to carry their intention into effect, it will be implied and enforced. Sacramento Nav. Co. v. Salz, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663. And a contract should not be so narrowly or technically interpreted as to frustrate its obvious design or so loosely construed as to relieve a party of an obligation or liability fairly within its scope or spirit. Davison Chemical Co. v. Baugh Chemical Co., 133 Md. 233, 104 A. 404, 3 A.L.R. 1. The transaction between these parties was not a lease of the mining claims. It was a sale of the property. And it is manifest from the contract and the circumstances surrounding its execution that the parties intended and understood that the purchase price to be paid for the property should represent and be two and one-half per cent of the returns accruing to Combined from the ores produced during the period of ten years after production began, less the cost of transportation, treatment, sampling, and assaying. The provision that the percentage factor should be applied to the net mill or smelter returns and defining such returns to mean the net amount paid for the ore by the milling or smelter company to whom it was sold, after deducting all treatment, transportation, sampling, and assaying charges was merely a yardstick to be employed in arriving at the amount of the royalty due under ordinary business practices. It was not the purpose of that" }, { "docid": "2591938", "title": "", "text": "available to the appellee by inspection were the contents of the core boxes. We are convinced, that but little pertinent information could have been obtained by such an inspection which as a matter of fact was made by the appellee’s son. Moreover, the general charge of the court as distinguished from the interrogatory, adequately covered the issue. We must conclude therefore that the appellee possessed the right to rescind the contract for fraud and to recover his out-of-pocket expenses for the work done and the materials furnished by him provided he did not act in a manner inconsistent with rescission of the contract. See Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; United States v. Atlantic Dredging Co., 253 U.S.. 1, 40 S.Ct. 423, 64 L.Ed. 735; Passaic Valley Sewerage Com’rs v. Holbrook, Cabot & Rollins Corp., 3 Cir., 6 F.2d 721, and Passaic Valley Sewerage Com’rs v. Tierney, 3 Cir., 1 F.2d 304. The decision of the Supreme Court of Pennsylvania in Funk et al. v. School Dist. of Abington Twp., 321 Pa. 435, 184 A. 659, dispels any doubt as to the law of Pennsylvania upon the point at issue. Was the Rescission of the Contract by the Appellee Effected in 'Time and Were His Actions Inconsistent With Such Rescission ? It is of course a fundamental principle of the law of contracts that an injured party waives his right to rescind a contract for fraud if he proceeds with the contract after he has learned facts which constitute a basis for rescission. In other words, such conduct is tantamount to affirmation of the contract. We have already stated that the conditions which the appellee met in drilling the shaft were not as represented. The appellee complained to the appellant of the conditions which he was meeting in sinking 'the shaft upon May 9th, 24th and 26th, and recorded his complaints ih the log of the job. Upon July 5th the appellee complained to the appellant’s resident engineer that sub-surface" }, { "docid": "23058597", "title": "", "text": "(1941); C. W. Blakeslee & Sons, Inc. v. United States, 89 Ct.Cl. 226, 250 (1939), cert. denied, 309 U.S. 659, 60 S.Ct. 512, 84 L.Ed. 1007 (1940); Archie & Allan Spiers, Inc. v. United States, Ct.Cl., decided Dec. 6, 1961, 296 F.2d 757. . See, e. g., Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898 (1914); Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933 (1915); United States v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 63 L.Ed. 166 (1918); United States v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L. Ed. 735 (1920); United States v. L. P. & J. A. Smith, 256 U.S. 11, 41 S.Ct. 413, 65 L.Ed. 808 (1921); Dunbar & Sullivan Dredging Co. v. United States, 65 Ct.Cl. 567 (1928); Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566, 573-574 (1932); Arcole Midwest Corp. v. United States, 113 F.Supp. 278, 125 Ct. Cl. 818 (1953); Potashnick v. United States, 105 F.Supp. 837, 123 Ct.Cl. 197 (1952); Railroad Waterproofing Corp. v. United States, 137 F.Supp. 713, 133 Ct. Cl. 911 (1956). . See most of the cases cited in the preceding footnote. . There have been a number of cases in which contractors were required to scan Government information beyond the confines of the contract documents. See United States v. Atlantic Dredging Co., 253 U.S. 1, 3, 10, 40 S.Ct. 423, 64 L.Ed. 735 (1920); Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566, 573-574 (1932); General Contracting Corp. v. United States, 88 Ct.Cl. 214, 248 (1939); C. W. Blakeslee & Sons, Inc. v. United States, 89 Ct.Cl. 226, 246 (1939), cert. denied, 309 U.S. 659, 60 S.Ct. 512, 84 L. Ed. 1007 (1940); Puget Sound Bridge & Dredging Co. v. United States, 130 F.Supp. 368, 131 Ct.Cl. 490, 497 (1955). . “GC-2 SITE INVESTIGATION AND REPRESENTATIONS. “The contractor acknowledges that he has satisfied himself as to the nature and location of the work, the general and local conditions, particularly those bearing upon transportation, disposal, handling and storage of materials, availability" }, { "docid": "5127193", "title": "", "text": "to recover on a quantum meruit basis. Salt Lake City v. Smith, 8 Cir., 104 F. 457; Hayden v. City of Astoria, 74 Or. 525, 145 P. 1072; United States v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; Karno-Smith Co. v. United States, 84 Ct.Cl. 110; Lentilhon v. City of New York, 102 App.Diy. 548, 92 N.Y.S. 897; City of Richmond v. J. J. Smith & Co., 119 Va. 198, 89 S.E. 123; Drainage District v. Rude, 8 Cir., 21 F.2d 257; United States v. Stage Company, 199 U.S. 414, 26 S.Ct. 69, 50 L.Ed. 251; Freund v. United States, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131; Cleveland Railway Company v. Moore, 170 Ind. 328, 82.N.E. 52, 84 N.E. 540; Chesapeake & O. Canal Company v. Hill, 15 Wall. 94, 82 U.S. 94, 21 L.Ed. 64. Defendant pleads as a special defense that no attempt has been made to comply with section 86 of the San Francisco Charter, which reads in part as follows: “No obligation involving the expenditure of money shall be incurred or authorized by any officer, employee, board or commission of the city and county unless the controller first certify that there is a valid appropriation from which the expenditure may be made, and that sufficient unencumbered funds are available in the treas ury to the credit of such appropriation to pay the amount of such expenditure when it becomes due and payable.” Should my conclusions be sustained and plaintiff be successful in obtaining a final judgment against defendant for a specified sum of money, the reasonable value of labor and materials furnished, it is probable that defendant will be required to pay the judgment. It is well settled that a municipal corporation cannot, while enjoying the fruits of a properly authorized contract,. deny liability on the ground that certain of its charter provisions have not been observed. Morgan v. Board of Education, 136 Cal. 245, 68 P. 703; Contra Costa Water Co. v. Breed, 139 Cal." }, { "docid": "5127192", "title": "", "text": "excuses from the defendant’s engineers, but the work of excavating for a foundation for the dam continued intermittently to the end. The contract permitted ■ the granting of additional time to complete performance in the event of unavoidable delays. It further provided for liquidated damages of $400 for each “calendar day by which such completion shall be delayed” beyond 730 calendar days. In this connection it is significant to note that defendant granted to plaintiff extensions aggregating 416 days, and never claimed any liquidated damages. Payments were made by defendant during the progress of the work and upon completion and acceptance, in the total sum of $3,457,000.69. Under the facts and circumstances shown by the record, I feel that it would be unjust to permit defendant to strictly enforce the contract against plaintiff. Circumstances unanticipated by the parties made radical changes in the character and amount of the work to be performed under the contract, greatly increasing the expense thereof. ■ I think that the contract may be deemed abrogated and plaintiff should be permitted to recover on a quantum meruit basis. Salt Lake City v. Smith, 8 Cir., 104 F. 457; Hayden v. City of Astoria, 74 Or. 525, 145 P. 1072; United States v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; Karno-Smith Co. v. United States, 84 Ct.Cl. 110; Lentilhon v. City of New York, 102 App.Diy. 548, 92 N.Y.S. 897; City of Richmond v. J. J. Smith & Co., 119 Va. 198, 89 S.E. 123; Drainage District v. Rude, 8 Cir., 21 F.2d 257; United States v. Stage Company, 199 U.S. 414, 26 S.Ct. 69, 50 L.Ed. 251; Freund v. United States, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131; Cleveland Railway Company v. Moore, 170 Ind. 328, 82.N.E. 52, 84 N.E. 540; Chesapeake & O. Canal Company v. Hill, 15 Wall. 94, 82 U.S. 94, 21 L.Ed. 64. Defendant pleads as a special defense that no attempt has been made to comply with section 86 of the" }, { "docid": "5894428", "title": "", "text": "contract and the circumstances under which it was made.” Sacramento Nav. Co. v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 369, 71 L.Ed. 663. The contract provision specifying that not more than 600 feet of compressed air work would- be paid for regardless of whether more was required does not relieve the appellant from liability for its misrepresentations. U. S. v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; United Construction Co. v. Town of Haverhill, 2 Cir., 9 F.2d 538, 540. This voluminous record contains 340 assignments of error. It is necessary to consider but a few of these, although they have been severally examined. A tabulation is made of the questions asked of all the witnesses by the trial judge, and appellant argues that from an analysis of thousands of questions asked the court erred by being too inquisitive. It has often been repeated that a trial judge in the federal courts is more than a mere arbitrator to rule upon objections as to evidence and to instruct the jury as to the law. He may and should take an active part in the examination of witnesses if he considers that the course of justice requires it. It is his function to elicit all the material evidence and assist in making straight the path of justice. Particularly was this true when it appeared to the learned judge below, engaged'in a very long trial, that there was an insufficient or improper elucidation of the provable facts. Young v. Corrigan, D. C., 208 F. 431, 438. As said in Capital Traction Co. v. Hof, 174 U.S. 1, 14, 19 S.Ct. 580, 585, 43 L.Ed. 873: “And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact whereof the jury are the judges.” This jury properly had the advantage of close observation, attention, and assistance by a" }, { "docid": "2591937", "title": "", "text": "exercise of reasonable diligence upon his part. We are of the opinion that this was a question for the jury, since there was conflict of evidence upon this point. Having this in mind the trial judge propounded Interrogatory l'to the jury as follows, “Did the defendant in the plans and specifications upon which the plaintiff bid make material misrepresentations as to the character of the subsoil through which the Maiden Creek water supply tunnel was to be constructed, the falsity of which could not reasonably have been discovered upon an inspection of the site of the work?” The jury answered the in terrogatory in the affirmative and was justified in doing so. \\ Only one objection might be raised to the interrogatory. It is perhaps too narrow in scope and should not have been limited to facts and conditions which could have been ascertained by the appellee “upon an inspection of the site of the work”. The appellant has not raised such an objection, however, and it is a fact that the only other data available to the appellee by inspection were the contents of the core boxes. We are convinced, that but little pertinent information could have been obtained by such an inspection which as a matter of fact was made by the appellee’s son. Moreover, the general charge of the court as distinguished from the interrogatory, adequately covered the issue. We must conclude therefore that the appellee possessed the right to rescind the contract for fraud and to recover his out-of-pocket expenses for the work done and the materials furnished by him provided he did not act in a manner inconsistent with rescission of the contract. See Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; United States v. Atlantic Dredging Co., 253 U.S.. 1, 40 S.Ct. 423, 64 L.Ed. 735; Passaic Valley Sewerage Com’rs v. Holbrook, Cabot & Rollins Corp., 3 Cir., 6 F.2d 721, and Passaic Valley Sewerage Com’rs v. Tierney, 3 Cir., 1 F.2d 304. The decision of" }, { "docid": "21191372", "title": "", "text": "and impossible of use in a compressed air job were specified in the contract. The stipulation that these free air methods be used was a representation that the job was free air tunnel construction work. Where one party furnishes specifications and plans for a contractor to follow in a construction job, he thereby impliedly warrants their sufficiency for the .purpose in view. United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166; Penn Bridge Co. v. City of New Orleans, 222 F. 737 (C.C.A.5); MacKnight Flintic Stone Co. v. Mayor of New York, 160 N.Y. 72, 54 N.E. 661. The specifications outlined above would be adequate only where the tunnel was to be built in free air. Thus the appellee, setting out these specifications to be followed, impliedly warranted the tunnel was substantially a free air job. Whether the builder was damaged in proceeding with the work in reliance on this implied warranty, as in the cases supra, or whether he was damaged in relying on the warranty in making his bid, as he did here, he may recover. Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898. The appellee relies on two provisions reading: “That where material other than solid rock is encountered, containing loose sand or mud, which shifts with the water contained in it, and the Contractor chooses to use compressed air to pass through it; in order to partly relieve him of the additional cost of preventing and caring for the incoming water and material or restraining it, an allowance will be made throughout the stretch where the compressed air is actually used under the above conditions of $30.00 per foot and for not more than six hundred (600) feet of length, where actually used, regardless of whether more be used or not.” “Maximum partial compensation for labor, plant and materials under compressed air when and if actually used as specified but not in excess of 600 feet in length of tunnel and Thirty and no/100" }, { "docid": "5894427", "title": "", "text": "required for new borings, the attempt was abandoned. It appears that most of the borings except those that struck rock were useless because they did not penetrate to the tunnel level. The county engineers did not check the work of those who prepared the boring samples which were exhibited to the contractor prior to the bidding. Appellee’s witnesses testified as to these borings that only four of them in a distance of 6,998 feet penetrated to the depth of the tunnel and they were of little or no use in determining the type of tunnel construction which would be required. Therefore the jury could have found, as they did, that these borings would not justify holding that the appellee had reliable information to indicate the contrary of the appellant’s representation that this was a free air tunnel j ob. The contract included not only the terms “set forth in express words, but, in addition, all such implied provisions as are indispensable to.effectuate the intention of the parties and as arise from the languag'e of the contract and the circumstances under which it was made.” Sacramento Nav. Co. v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 369, 71 L.Ed. 663. The contract provision specifying that not more than 600 feet of compressed air work would- be paid for regardless of whether more was required does not relieve the appellant from liability for its misrepresentations. U. S. v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; United Construction Co. v. Town of Haverhill, 2 Cir., 9 F.2d 538, 540. This voluminous record contains 340 assignments of error. It is necessary to consider but a few of these, although they have been severally examined. A tabulation is made of the questions asked of all the witnesses by the trial judge, and appellant argues that from an analysis of thousands of questions asked the court erred by being too inquisitive. It has often been repeated that a trial judge in the federal courts is more than" } ]

[ { "docid": "22670736", "title": "", "text": "possible danger being to a little girl. App. 59. After he returned to the scene, respondent told the police captain that he wanted to help them locate the shotgun because he “wanted to get the gun out of the way because of the kids in the area in the school.” Id., at 39. Given the timing of respondent’s statement and the absence of any evidence that he knew about the school prior to Officer Gleckman’s statement, it is clear that respondent’s statement was the direct product of the conversation in the police wagon. Ante, at 293, 297-298. In Miranda the Court explicitly stated: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U. S., at 474. As the Court points out, ante, at 299, the Court in Miranda was acutely aware of the fact that police interrogation techniques are not limited to direct questioning. “That is to say, the term ‘interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Ante, at 301. In limiting its test to police statements “likely to elicit an incriminating response,” the Court confuses the scope of the exclusionary rule with the definition of “interrogation.” Of course, any incriminating statement as defined in Miranda, quoted ante, at 301, n. 5, must be excluded from evidence if it is the product of impermissible interrogation. But I fail to see how this rule helps in deciding whether a particular statement or tactic constitutes “interrogation.” After all, Miranda protects a suspect in Innis’ position not simply from interrogation that is likely to be successful, but from any interrogation at all. “We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would" } ]

[ { "docid": "23439733", "title": "", "text": "of the circumstances, when Obre-gon signed the form, he made a knowing and intelligent waiver of his right to counsel as required by Edwards v. Arizona, supra, and Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Under such circumstances, Obre-gon’s statements need not be suppressed. We are satisfied that the action of Agent Bustamonte in taking Obregon into an office was solely for the purpose of obtaining written verification that he had been apprised of his constitutional rights. This, in our view, did not constitute the type of “custodial interrogation” violative of the rule in Edwards v. Arizona. Obregon’s meeting with Agents Bustamonte and Wallsmith, although “custodial,” was not “interrogation” because it did not constitute “words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). In Oregon v. Bradshaw, supra, the Supreme Court held that Bradshaw’s statement, “Well, what is going to happen to me now?” initiated further conversation with the police officer, and that the police did not begin to interrogate him until after he had validly waived his right to counsel. Similarly, Obregon’s question to Agent Bustamonte inquiring what would happen to him if he told her what she wanted to know initiated further conversation. Obre-gon testified, supra, that no deal or promises had been made to him and that he voluntarily signed the waiver form and subsequently made incriminating statements in the hope that it would help him. Thus, Obregon’s subsequent statements to Agents Bustamonte and Wallsmith need not be suppressed under either Edwards, supra, or Bradshaw, supra. We wish to emphasize that our holding on this point is a narrow one and is confined to the facts of this case. Law enforcement officials may find it desirable in the future, in order to avoid the problem presented here, to utilize two distinct forms, one perhaps captioned “Advice of Rights” form setting forth one’s rights under Miranda with" }, { "docid": "23427262", "title": "", "text": "interrogation after invocation of his rights under Miranda. We disagree. The term “interrogation” refers to “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Agent Bakios’s question, posed to the other agents to determine whether Mr. Zarate had invoked his right to counsel, does not fall within the Court’s definition of interrogation. Instead, the agent’s question seems quite consistent with conduct attendant to arrest and custody. See United States v. Comosona, 848 F.2d 1110, 1112-13 (10th Cir.1988) (officer’s suggestion to defendant to call him collect to discuss incident constituted conduct normally attendant to arrest). The agents did not interrogate Mr. Zarate. Mr. Zarate initiated communication with Agent Baldos who simply responded to his questions. See United States v. Johnson, 42 F.3d 1312, 1318 (10th Cir.1994) (defendant who was informed of probable sentences and benefits of cooperation and who then invoked right to counsel initiated contact with officers by asking some time later “what exactly can I do to help myself out?”); United States v. Trimble, 986 F.2d 394, 401 (10th Cir.1993) (defendant’s inquiry to federal agents about potential penalties constituted initiation of communication and effective waiver of right to counsel). Having determined Mr. Zarate was not subject to interrogation in violation of Miranda, we further conclude no evidence suggests his waiver was otherwise ineffective. Mr. Zarate has not alleged, and nothing in the record indicates, that agents coerced or intimidated him into waiving his rights. After evaluating the information received from Agent Baldos, Mr. Zarate told the agents he wished to speak to them without an attorney. That Agent Baldos noted the possible benefits of cooperation does not compel a finding that Mr. Zarate was deceived or lacked awareness of the consequences of his waiver. See Toro-Pelaez, 107 F.3d at 826. We hold the government has met its burden of establishing Mr. Zarate’s incriminating statements were the product of" }, { "docid": "11428002", "title": "", "text": "moved the trial court for suppression of certain statements Davis made following his arrest to Agent Richard Ludowig during processing. Davis based his motion on the grounds that the statements were not volunteered, but rather were made in response to Agent Ludowig’s prompting in the course of a dialogue. The district court denied the motion finding that Davis was not being “interrogated” as that term is defined in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, the Supreme Court held that interrogation refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90. Where an objective observer would believe that the encounter was reasonably likely to elicit an incriminating response from the defendant, the court will find that the encounter constituted the “functional equivalent” of interrogation. Innis, 446 U.S. at 300-01, 100 S.Ct. at 1689-90. Voluntary statements, however, are admissible and not subject to the Miranda warnings, unless the statements are the result of compelling influence. Innis, 446 U.S. at 299-300, 100 S.Ct. at 1689, quoting Miranda, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). The question of which party encouraged the dialogue between the police and the accused plays an indicative role in the determination of whether the statement was the result of compelled influence. Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704 (1988). The facts here indicate that Davis initiated the conversation. On March 24,1990, during processing, Davis told Agent Ludowig that he did not know he was wanted and did not kill anyone. Davis added, “You’d better have some witnesses.” Agent Ludowig responded that “They sure did.” Agent Ludowig also replied to Davis that “[he] would get a chance if he so desired to do the right thing and to cooperate.” Davis then replied, “Don’t treat me" }, { "docid": "23427261", "title": "", "text": "has occurred is a question of law which we review de novo; subsidiary factual determinations are reviewed under the clearly erroneous standard. Toro-Pelaez, 107 F.3d at 826. The Supreme Court mandates that once a defendant has invoked his right to an attorney, all questioning by law enforcement officers must cease until an attorney is present. Miranda, 384 U.S. at 474, 86 S.Ct. at 1627-28. While a defendant who has exercised his right to be represented by counsel may subsequently waive that right, “a valid waiver ... cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” United States v. Giles, 967 F.2d 382, 385 (10th Cir.1992) (quoting Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981)). A defendant who has invoked his right to counsel may not be subject to further interrogation unless he initiates the communication. Id. Mr. Zarate argues Agent Bakios’s initial question to the other agents concerning Mr. Zarate’s decision to cooperate constituted interrogation after invocation of his rights under Miranda. We disagree. The term “interrogation” refers to “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Agent Bakios’s question, posed to the other agents to determine whether Mr. Zarate had invoked his right to counsel, does not fall within the Court’s definition of interrogation. Instead, the agent’s question seems quite consistent with conduct attendant to arrest and custody. See United States v. Comosona, 848 F.2d 1110, 1112-13 (10th Cir.1988) (officer’s suggestion to defendant to call him collect to discuss incident constituted conduct normally attendant to arrest). The agents did not interrogate Mr. Zarate. Mr. Zarate initiated communication with Agent Baldos who simply responded to his questions. See United States v. Johnson, 42 F.3d 1312, 1318 (10th Cir.1994) (defendant who was informed of probable sentences and benefits" }, { "docid": "11452131", "title": "", "text": "of action and confined within a coercive custodial environment, the remaining issue to be decided is whether the conversation between Agent Viater and Mesa constituted an interrogation. The meaning of interrogation was recently addressed by the Supreme Court in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980): We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (footnotes omitted). At the outset, it is not necessary to engage in any lengthy discussion of whether Agent Viater’s statements were in fact “questions”, for his words and actions surely were the functional equivalent of express questioning, and as such fall squarely within the Supreme Court’s definition of interrogation. Although the Supreme Court has provided only little guidance as to precisely what constitutes the functional equivalent of express questioning, any meaningful definition of the term would have to encompass the situation presented here. The Supreme Court in Innis has indicated that the intent of the police: ... may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. Id. at 302 n.7, 100 S.Ct. at 1690 n.7. In the case sub judice, Agent Viater had the secondary purpose of obtaining information from Mesa about the previous day’s shootings. Agent Viater did quite a bit more than exchange mere pleasantries with Mesa. His comments were frequently investigatory and can hardly be described as innocuous in terms of" }, { "docid": "15701454", "title": "", "text": "crime. He asked the officers to stop and directed them to the weapon’s hiding place. Applying a two-prong standard to determine whether custodial interrogation had taken place, the Supreme Court concluded that since Innis had not undergone express questioning, the issue was whether he had been subjected to its functional equivalent: [t]hat is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 446 U.S. at 301, 100 S.Ct. at 1689 (emphasis added and footnotes omitted). In this case to hold otherwise and adopt the government’s standard for custodial interrogation which looks to whether express questioning should have been expected to evoke an incriminating response, is to ignore the unequivocal language of Innis. That decision could not be clearer in holding that custodial interrogation for Miranda purposes embraces “either express questioning or its functional equivalent.” 446 U.S. at 300-01, 100 S.Ct. at 1689 (emphasis added.) This Court need not look beyond the first prong of the standard, however, since the record establishes that Hinckley was expressly questioned by federal agents at the Washington Field Office. The questioning of the defendant by law enforcement authorities during that time interval falls squarely within the Supreme Court’s definition of custodial interrogation as provided in Miranda and clarified in Innis. Accordingly, any statements obtained from him beyond that “normally attendant to arrest and custody” must be suppressed. 2. Turning to the issue of whether Hinckley’s right to counsel was honored, it is significant to reiterate that the Supreme Court held in Miranda, 384 U.S. at 474, 86 S.Ct. at 1627, that where “the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Accord, Michigan v. Mosley, 423 U.S. 96, 104, n.10, 96 S.Ct. 321, 326, 46 L.Ed.2d 195 (1975); Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979). More" }, { "docid": "11670199", "title": "", "text": "(5th Cir.1991). The district court accordingly did not abuse its discretion in denying Padilla’s motion for new trial, founded as it was on the state court’s nunc pro tunc order. B Padilla next contends that the district court erred in admitting a statement that he made to FBI Special Agent Scott Garri-óla, a member of the FBI’s Fugitive Task Force. The statement was made while Padilla was in custody without having been given the warnings required by Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602, so the statement was required to be excluded if it was the result of interrogation. Agent Garrióla had previously met with Padilla in connection with Garriola’s investigation into the whereabouts of a fugitive named Joe Luis Saenz, but Padilla refused to assist in the investigation. The statement in issue was made when Agent Garrióla went to the state prison facility and placed Padilla under arrest pursuant to the federal warrant for felon-in-possession charges. Agent Garrióla advised Padilla of the federal charges and told him that he was being taken to make his initial appearance before a magistrate judge, but he did not give Padilla any Miranda warnings. Agent Garrióla said something to the effect that this was Padilla’s last chance to cooperate in the Saenz investigation. Padilla responded by declaring that he was not worried about the federal firearms case because the police had planted the gun. The district court concluded that this statement was not the product of interrogation and permitted the government to admit it into evidence. We conclude that the statement was the result of interrogation. Interrogation is defined as express questioning and its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The functional equivalent of express questioning includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682 (footnote omitted). An “incriminating response” refers to “any response — whether inculpatory" }, { "docid": "11073323", "title": "", "text": "Story had located the hidden compartment. See supra at 5. Appellant claims that the admission of his inculpatory remarks violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965). In his brief, appellant admitted that Agent Story advised him of his Miranda rights at the scene of the arrest, and that appellant affirmatively responded that he understood those rights. In order for appellant to make out a claim under Miranda, however, his statements must have been the product of custodial interrogation. Id. at 444, 86 S.Ct. 1602 (“[T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards- effective to secure the privilege against self-incrimination.”). The protections of Miranda extend beyond actual questioning by the police to include the “functional equivalent” of interrogation, meaning “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Although Story and Houle did formally question appellant about the registration of the van, the agents ceased interrogation when appellant indicated he wanted to talk to his lawyer. Although Lopez remained in custody, any statement made “freely and voluntarily without any compelling influences is, of course, admissible-in evidence,” Miranda, 384 U.S. at 478, 86 S.Ct. 1602. See Innis, 446 U.S. at 299, 100 S.Ct. 1682. We see no indication that appellant’s statements stemmed from custodial interrogation or its functional equivalent. Houle’s remark, although suggesting that the case against Lopez was strengthened by discovery of “the stuff,” was not designed to elicit an incriminating response. Although our focus must be “primarily upon the perceptions of the suspect, rather than the intent of the police,” Innis, 446 U.S. at 301, 100 S.Ct. 1682, it is difficult to see how appellant could have construed a passing remark as the functional equivalent of interrogation. Indeed, Houle left the room immediately after making" }, { "docid": "3689424", "title": "", "text": "of the United States Attorney and the judge assigned to the case. At that point, Agent Rehg finally indicated that the “questioning” part of the meeting was commencing, stating, “Well, tell us what has been going on. Maybe that’s the best way to start.” Video at 18:03; R. 287, Tr. at 111. By indicating that this was “the best way to start,” Agent Rehg confirmed that this was the beginning of questioning, implying that the first nine minutes of the meeting did not constitute interrogation. This implication, of course, was contrary to the broad definition of interrogation adopted by the Supreme Court, which includes any words that the police should know are likely to elicit an incriminating response. Innis, 446 U.S. at 300-01, 100 S.Ct. 1682. For the first time since the interrogation began, Agent Rehg flipped open his notebook and pulled out a pen. At this, Wysinger seemed to recognize that “questioning” was starting and he then clearly invoked his right to a lawyer as we concluded above. Although we have already determined that the court should have excluded the video from that point forward, we will recount the continued pattern of diversion because it relates to and supports Wysinger’s claim of misleading Miranda warnings. Rather than respond to Wysinger’s direct and immediate question of whether he could call an attorney at that instant, Agent Rehg again diverted Wysinger: he asked questions about the lawyer, gave some incorrect “advice” about whether Wysinger could use the same lawyer that his brother was using, and continued the interrogation for twenty-three more minutes. See Lee, 413 F.3d at 627 (expressing concern over police tactics of attempting to persuade suspect who had just invoked his right to counsel to give up his asserted right). During this time, Wysinger struggled to remember the name and phone number of the attorney, made a few more incriminating statements, asked the agents if they could retrieve the lawyer’s phone number from his van, and finally repeated yet again his desire to call the lawyer, asking the agent to get the number for him so that he could" }, { "docid": "11670200", "title": "", "text": "make his initial appearance before a magistrate judge, but he did not give Padilla any Miranda warnings. Agent Garrióla said something to the effect that this was Padilla’s last chance to cooperate in the Saenz investigation. Padilla responded by declaring that he was not worried about the federal firearms case because the police had planted the gun. The district court concluded that this statement was not the product of interrogation and permitted the government to admit it into evidence. We conclude that the statement was the result of interrogation. Interrogation is defined as express questioning and its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The functional equivalent of express questioning includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682 (footnote omitted). An “incriminating response” refers to “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Id. at 301 n. 5, 100 S.Ct. 1682 (emphasis original). Agent Garriola’s “last chance to cooperate” statement constituted interrogation because the agent should have known that it was reasonably likely that such a comment would evoke an incriminating response. It is difficult to imagine any purpose for such a statement other than to elicit a response. The fact that Agent Garrióla was seeking a response with regard to a separate investigation does not alter our conclusion. The “last chance” of which Padilla had been advised was the last chance for a possible bargain over Padilla’s federal charges, and a response related to those charges was a natural result of the question. The question was “reasonably likely to evoke an incriminating response.” Id. at 302 n. 7, 100 S.Ct. 1682; see United States v. Brown, 720 F.2d 1059, 1068 (9th Cir.1983) (“It is almost axiomatic in criminal investigation that if a suspect is induced to talk at all, he is likely to hurt his" }, { "docid": "11013610", "title": "", "text": "denial of Mr. Dickson’s motion to suppress the statement that he made in the squad car, the district court’s implicit finding that Mr. Dickson had been advised of his Miranda rights when he made that statement is not clearly erroneous. Mr. Dickson contends, with respect to the statement that he gave to FBI agents at police headquarters, that he had already invoked his right to counsel, yet the FBI agents continued to question him, in effect prompting him to “reconsider his request for counsel” through “subtle persuasion.” We assume that Mr. Dickson is intimating that he did not effectively waive his Miranda rights. We disagree. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28. If questioning does not cease, and the defendant gives a statement outside the presence of a lawyer, the government bears the “heavy burden” of showing that the defendant “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475, 86 S.Ct. at 1628. Once Mr. Dickson was at police headquarters, two FBI agents identified themselves and asked him if he would be willing to talk. At that time, Mr. Dickson said, “[M]aybe I should have a lawyer.” As the FBI agents were “[g]etting up,” one of them stated that “at any point [Mr. Dickson] could change his mind” and that “if [Mr. Dickson] wanted to talk,” he could “give them a call.” Mr. Dickson then said, “[0]kay, I changed my mind, I want to talk to you.” We do not consider the FBI agent’s suggestion that Mr. Dickson could “give them a call” if he changed his mind to have been “either express questioning or its functional equivalent” — i.e., “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980)." }, { "docid": "12546846", "title": "", "text": "pedigree information normally does not amount to custodial interrogation, see United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.1988) (citations omitted), we see no basis for distinguishing silence in the face of pedigree questions from silence in the face of more substantive interrogation. If a suspect refuses to answer even non-incriminating pedigree questions, the interrogating officer cannot reasonably conclude that he will immediately thereafter consent to answer incriminating ones. The record in this case bears out this conclusion. After Montana refused to respond to pedigree questions, the agents did not ask him any non-pedigree questions while he remained at DEA headquarters. In fact, Agent Mitesser wrote in his report that, after being advised of his rights, “Montana elected not to make any statements.” The clear inference is that the agent understood Montana’s silence as an invocation of his Fifth Amendment privilege. The next self-incrimination issue is whether the agents’ statements to Montana during the drive from DEA headquarters to the courthouse constituted interrogation. The agents told Montana that cooperation would inure to his benefit. The police interrogate “whenever a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Interrogation includes both express questioning as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689-90. Agent Koval’s unsolicited statement informing the defendants that any cooperation would be brought to the attention of the Assistant United States Attorney constituted “interrogation.” See United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir.1986) (officer’s statement suggesting that cooperation would be benefi cial constituted interrogation). In fact, Agent O’Brien acknowledged that statements of this type are used by law enforcement officials to induce a suspect to provide incriminating evidence. This interrogation violated Montana’s right to cut off questioning in violation of Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct." }, { "docid": "12546847", "title": "", "text": "The police interrogate “whenever a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Interrogation includes both express questioning as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689-90. Agent Koval’s unsolicited statement informing the defendants that any cooperation would be brought to the attention of the Assistant United States Attorney constituted “interrogation.” See United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir.1986) (officer’s statement suggesting that cooperation would be benefi cial constituted interrogation). In fact, Agent O’Brien acknowledged that statements of this type are used by law enforcement officials to induce a suspect to provide incriminating evidence. This interrogation violated Montana’s right to cut off questioning in violation of Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313 (1975). See also Miranda, 384 U.S. at 479, 86 S.Ct. at 1630; Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir.1989), cert. denied, — U.S. —, 111 S.Ct. 1419, 113 L.Ed.2d 471 (1991). No harm resulted, however, because the District Judge excluded evidence of the conversation in the car on relevancy grounds. The final self-incrimination issue is whether Montana’s statements uttered while awaiting presentment before the Magistrate Judge were obtained in violation of his rights. Montana began the conversation by shaking his head and saying that he could not believe he was in all this trouble for only $50. The District Court found that Agent Mitesser’s subsequent statements, which led to additional inculpatory remarks, constituted “interrogation” for purposes of the Fifth Amendment. Nevertheless, the Court denied Montana’s motion to suppress his words on the ground that he had indicated his willingness to be interviewed by initiating the conversation. We agree, Montana clearly initiated the conversation when he shook his head and stated that he could not believe he was in" }, { "docid": "11073324", "title": "", "text": "the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Although Story and Houle did formally question appellant about the registration of the van, the agents ceased interrogation when appellant indicated he wanted to talk to his lawyer. Although Lopez remained in custody, any statement made “freely and voluntarily without any compelling influences is, of course, admissible-in evidence,” Miranda, 384 U.S. at 478, 86 S.Ct. 1602. See Innis, 446 U.S. at 299, 100 S.Ct. 1682. We see no indication that appellant’s statements stemmed from custodial interrogation or its functional equivalent. Houle’s remark, although suggesting that the case against Lopez was strengthened by discovery of “the stuff,” was not designed to elicit an incriminating response. Although our focus must be “primarily upon the perceptions of the suspect, rather than the intent of the police,” Innis, 446 U.S. at 301, 100 S.Ct. 1682, it is difficult to see how appellant could have construed a passing remark as the functional equivalent of interrogation. Indeed, Houle left the room immediately after making the comment, signaling to appellant that no response was sought. In United States v. Genao, 281 F.3d 305 (1st Cir.2002), we upheld the admission of a confession blurted out by the defendant in response to an officer’s statement — in conjunction with a display of seized contraband — that “[wje’ve got a problem here.” See id. at 310. We reasoned that the remark was brief, not worded in a particularly confrontational manner, and, in the context of the ongoing search, intended simply to get the defendant’s attention before reading him his rights. See id. at 311. Similarly, Houle’s succinct remark simply highlighted information that appellant needed to know to convey to his attorney, who at that point was on his way to the station. Cf. United States v. Conley, 156 F.3d 78, 83 (1st Cir.1998) (“A law enforcement officer’s mere description of the evidence and of potential charges against a suspect ... hardly can be classified as interrogatory.”). Because appellant’s voluntary statements, though incriminating, were not the product of custodial interrogation, the district court properly" }, { "docid": "16754803", "title": "", "text": "legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism. Id. at 110 n. 2 (White, J., concurring). . In asserting that Cherry waived his right to counsel, the government argues that Cherry’s remark, ‘“Maybe I should contact an attorney____’ was equivocal at best.” Supplemental Brief of Appellee at 20. However, the government fails utterly to address either Nash or Thompson, both of which bear directly on the issue of equivocal requests for counsel. . See supra note 5. Because Agent Graham admitted that they had told Cherry about the gun in an effort to elicit further information from him, it is unnecessary for us to determine whether telling Cherry about the gun was a form of interrogation under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, the Supreme Court held that \"the term 'interrogation' under Miranda refers not only to express questioning, but also words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.\" Id. at 301, 100 S.Ct. at 1689 (footnotes omitted). . In its brief, the government also claimed that after Cherry said, \"Maybe I should contact an attorney ....”, it was Cherry who initiated further discussion with the agents, thus waiving his right to counsel. Supplemental Brief of Appellee at 20. As we have pointed out, it was the FBI agents, not Cherry, who initiated conversation following Cherry’s equivocal expression of a desire to speak to counsel, and the conversation was not limited to clarification of this expression. . 601 F.2d at 771 n. 7. . The government also argues that Cherry’s consent to search his barracks for the gun constituted a waiver of his Miranda rights prior to his confession. Supplemental Brief of Appellee at 21. Such a contention is without merit. Consent to search is not a waiver of the right to counsel. Moreover, this consent to search was the unlawful product of the government’s inquiry regarding the" }, { "docid": "7556981", "title": "", "text": "Robinson argues that his statement should have been suppressed and that, because the jury was allowed to consider this evidence, we should reverse his conviction. We review the district court’s factual findings on a motion to suppress for clear error and its legal conclusions de novo. United States v. Burks, 490 F.3d 563, 565 (7th Cir.2007). Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a suspect must be informed of, and voluntarily waive, his right to counsel before being subjected to custodial interrogation. A waiver of the right to counsel is valid only if, under the “totality of the circumstances,” the waiver was knowing and voluntary. Edwards v. Arizona, 451 U.S. 477, 486 n. 9, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Once a suspect has informed the police that he wishes to consult with a lawyer, all interrogation of the suspect must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. 1880. A suspect initiates conversation if he makes a statement that “evince[s] a willingness and a desire for a generalized discussion about the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). By itself, a suspect’s initiation of conversation does not necessarily constitute a waiver of his right to counsel; the suspect’s waiver must also be knowing and voluntary, under the totality of the circumstances, before law enforcement agents engage in any interrogation. Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880. Robinson claims that the district court erred in finding that he reinitiated the conversation that resulted in his incriminating statement. Specifically, he argues that under the “totality of the circumstanees” he could not have reinitiated conversation with the agents. Robinson claims that the officers first violated Edwards by deceiving him by telling him he was going to the Lombard police station but instead taking him to Westchester. He claims this diversion was done with the intention of eliciting an incriminating statement and that, but" }, { "docid": "20882204", "title": "", "text": "the sentencing hearing, the district court found, over Clark’s objection, that he gave false information to the police regarding his identity and that his trial testimony was “less than truthful.” Finding that Clark attempted to obstruct the investigation and the prosecution, the district court applied § 3C1.1 of the Sentencing Guidelines and enhanced the sentencing offense level by two points for obstruction of justice. II. A. Clark first argues that the ATF agents violated his Fifth Amendment right against self-incrimination. He claims that the personal history questioning by Agent Milhills was actually “interrogation,” in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was a “mere pretext to get [Clark] to open up and incriminate himself.” The government acknowledges that Clark was in custody and that Milhills did not give Clark Miranda warnings prior to or during the trip to Grand Rapids. However, the government argues that the questioning did not amount to interrogation because it was limited to “routine booking questions”; thus, any statements made by Clark other than in response to the routine booking questions were voluntary. As a general rule, when a defendant is in custody, law officials must give him appropriate Miranda warnings before interrogation begins; otherwise, any statements resulting from the police interrogation will be inadmissible unless the defendant clearly and intelligently waived his rights. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Interrogation is defined as “questioning initi ated by law enforcement officials.” Id. at 444, 86 S.Ct. at 1612. This definition has been extended to the “functional equivalent” of express questioning and includes, “any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Custodial interrogation includes “words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have ... the force of a question on the accused’ ... and therefore be" }, { "docid": "804476", "title": "", "text": "1627. The principal issue, therefore, is whether Ripley’s conversation with Egan constituted “interrogation.” In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (U.S. 1980), the Supreme Court held that statements volunteered by a defendant who had requested counsel did not infringe the defendant’s Miranda rights since the defendant was not “subjected to either express questioning or its functional equivalent.” Id. at 446 U.S. at 299, 100 S.Ct. at 1689. The Court stated, A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or action, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. Id. at 301-302, 100 S.Ct. at 1690 (footnotes omitted). Under the definition set forth in Innis, the conversation between Ripley and Egan, which was not designed to elicit an incriminating response, and did not represent a Coast Guard attempt to utilize “subtle compulsion,” did not constitute interrogation or its functional equivalent. The admissions by Egan to Ripley accordingly were not received in violation of Miranda and will not be suppressed. The Hart statements while on board the VIGOROUS also were not taken in violation of Hart’s Miranda rights. Hart, unlike Egan, did not request an attorney. His Sixth Amendment rights had not attached. Under Miranda, the police were not prohibited from questioning Hart. In view of the types of questions asked by Ripley, the Ripley conversation might well constitute interrogation. Even if it was interrogation, however, it did not constitute illegal interrogation. Therefore, Hart’s statements will not be suppressed. Vasquez-Castro has moved to suppress the testimony of DEA Agent Lopez. Lopez interviewed Vasquez-Castro and the six other Colombian defendants on board the VIGOROUS on March 24,1980. On the previous day, Vasquez-Castro had signed a Coast Guard form on which he requested an attorney. The express interrogation of Vasquez-Castro by Lopez violated Vasquez-Castro’s Miranda" }, { "docid": "4518765", "title": "", "text": "be suppressed because the government, in eliciting and taping them, violated his right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, the Miranda procedural safeguards are required only in instances of custodial interrogation. The Supreme Court explored the meaning of the term “interrogation” in Rhode Island v. Innis, 446 U.S. 291,100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court held that the Miranda safeguards apply to express questioning as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689 (footnotes omitted). In the case at bar, the pressures to which Moody was submitted, and about which he now complains, were no more than “those normally attendant to ... custody.” Id. Thus, Moody’s Miranda claim must fail. Our decision in this instance receives further support by the Supreme Court’s decision in Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). In Perkins, the Court allowed evidence to be admitted, without invocation of the Miranda safeguards, that had been gathered through conversations between the defendant and his cellmate, who was in fact a government agent. The Court held that “[wjhere the [incarcerated] suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced.” 496 U.S. at 292, 110 S.Ct. at 2395, 110 L.Ed.2d at 252. Even though the agent had initiated the conversations, there was no police-dominated coercive atmosphere and thus no custodial interrogation, the Court held. “Ploys to mislead a suspect ... that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” Id. 496 U.S. at 297, 110 S.Ct. at 2397, 110 L.Ed.2d at 251. In this case, the alleged coercion by the government is significantly less than that which the Court allowed in Perkins— no one at all induced Moody" }, { "docid": "12137601", "title": "", "text": "a statement made by an accused during a custodial interrogation, after the accused has invoked his right to counsel, is admissible in the Government’s case in chief if the accused initiates further conversation after the invocation and if the Government carries the burden of showing that the accused subsequently waived his Fifth Amendment right to the assistance of counsel. Comosona argues that it was the law enforcement officials who continued after he invoked his right to counsel and he did not initiate further conversation. Specifically, Comosona contends that Agent Babcock’s invitation to call him collect constituted impermissible “interrogation.” The definition of the term “interrogation,” for the purposes of Miranda analysis, was set forth by the Supreme Court in Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297: “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” We cannot agree with Comosona that Agent Babcock should have known that giving Comosona his card and inviting him to call collect was “reasonably likely to elicit an incriminating response.” Rather, we conclude that Agent Babcock acted in a manner “normally attendant to arrest and custody” when he gave Comosona his card and invited him to call to discuss the incident further. We are mindful that Agent Babcock’s intent is not determinative here, but it “may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response.” Rhode Island v. Innis, 446 U.S. at 302 n. 7, 100 S.Ct. at 1690 n. 7. Agent Babcock testified at the suppression hearing that he gave Comosona his card in case “he had any questions or ... wanted to initiate the interview later" } ]

[ { "docid": "6370536", "title": "", "text": "in the manufacture of goods for interstate commerce are within the Act is too well established for dispute. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L. Ed. 1638. The issue, therefore, resolves itself to this: How many and what proportion of the tenants of this building are substantially engaged in the production of goods for interstate commerce ? The burden of proof rests with these plaintiffs to show that a substantial number of the tenants were so engaged. The word “substantial” as here used has been interpreted to mean that at least 20 per cent of the building be occupied by tenants engaged in the production of goods for interstate commerce. Baldwin et al. v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524; Gangi v. D. A. Schulte, Inc., 2 Cir., 150 F.2d 694. The issue is complicated by the further problem as to just what constitutes “production,” as defined by the Act to include “handling, transporting or in any manner working on such goods, or in any process or occupation necessary to the production thereof.” This latter question presents a real problem and the real problem to be solved here. I was rather of the opinion after the Circuit Court of Appeals of this Circuit had decided the Callus case (Callus v. 10 E. 40th Street Building, Inc., 2 Cir., 146 F.2d 438), the Borella case (Borella v. Borden Co., 2 Cir., 145 F.2d 63), and the Fleming case (Fleming v. Post, 2 Cir., 146 F.2d 441), that this question was no longer a problem but a mathematical computation, but the U. S. Supreme Court reversed in the Callus case (10 E. 40th Street Bldg. v. Callus, 65 S.Ct 1227), and on the same day affirmed the Borella case (Borden Co. v. Borella et al., 65 S.Ct. 1223), but in the opinion in the Callus case defined the limit to which it intended to go in the Borella case. Then again, the Circuit Court of Appeals of this Circuit in Baldwin v. Emigrant Industrial Savings Bank, supra, apparently in the light of the decision of" } ]

[ { "docid": "1399860", "title": "", "text": "set out in Vollmer and prior thereto is: “Whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity. See McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538.” We consider this test inapplicable where coverage is bottomed on “production of goods for commerce”. It is necessary, then, to determine only if the worker was engaged in producing goods for commerce, and we concur in the trial court’s opinion where it is stated: “In view of the consistent pattern of decision the court necessarily holds that each of the employees, Fielder, Moore, Watts and Lewis was during the closing month of 1949 engaged in the production of goods for commerce through his work for the performance of the construction contract with the City of Beatrice. It is true that none of them directly came into contact with or worked upon the manufacture of articles that were shipped in commerce. But that is not necessary. Actual physical contact with goods produced for interstate commerce is not essential to bring a laborer within coverage of the Act as one engaged in the production of goods for commei’ce. Walling v. McCrady Construction Co., 3 Cir., 156 F.2d 932; E. C. Schroeder Co., Inc., v. Clifton, 10 Cir., 153 F.2d 385; Phillips v. Meeker Cooperative Light & Power Ass’n, D.C.Minn., 63 F.Supp. 733, affirmed, Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698.” Concerning the employees in the home office and the timekeepers out of state, appellants argue that their activities in relationship to interstate commerce were remote and inconsequential and that inter-office reports are not “goods”. Mitchell v. Household Finance Corp., 3 Cir., 1953, 208 F.2d 667. However, as is evident from this court’s decision in Tobin v. Johnson, 1952, 198 F.2d 130, certiorari denied Johnson v. Durkin, 345 U.S. 915, 73 S.Ct. 726, 97 L.Ed. 1349, the Supreme Court’s decision in Alstate Const. Co. v. Durkin, 1953, 345 U.S." }, { "docid": "22266653", "title": "", "text": "but agreed as to the second; the change being due to a shift in the votes of Douglas Frankfurter and Jackson, JJ. In 10 East 40th Street Building, Inc. v. Callus, supra, many of the tenants were executives of companies which were engaged in the “production of goods for commerce,” whose relation to production was therefore the same as was that of those executives of the Borden Company who occupied the Borden Building. On the other hand some of the tenants in the 40th Street building were only sales agents, or in other relations incidental to the production of goods; and these we had counted with executives. However, we do not find in the prevailing opinion any reliance upon a difference between executives and other agencies; the decisive distinction was that the Borden Company owned the building and itself made use of it as part of its production of goods for commerce: i. e. milk. This appears in the following passage (325 U.S. at pages 583, 584, 65 S.Ct. at page 1230, 89 L.Ed. 1306) : “an office building exclusively devoted to the purpose of housing all the usual miscellany of offices has many differences in the practical affairs of life from a manufacturing building, or the office building of a manufacturer.” The court also distinguished the situation before it from A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, because no actual physical manufacture went on in the 40th Street building; and in Baldwin v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524, we regarded that as the basis for a reconciliation of the two decisions. Therefore, in the case at bar, if the Bank does produce “goods” within the building, as we shall show that it does, both A. B. Kirschbaum Co. v. Walling, supra, and Borden Co. v. Borella, supra, support the plaintiffs’ claims: with the proviso, of course, that the proportion of “goods” produced in the building is enough to color the activities of the employees as a whole. In deciding that issue we must take against the defendant" }, { "docid": "11137955", "title": "", "text": "property in the two communities are protected by the firemen involved in the instant case. On the basis of the above facts, the trial court held, and we think properly so, that the community firemen were covered by the Act. The court made the following relevant findings of fact: (1) General Electric was engaged in the production of goods for commerce since a large part of the plutonium produced at Hanford Works was distributed to points outside the State of Washington. (2) Although the firemen were not directly protecting the plant area, they were protecting the administrative portion of the plant and were therefore engaged in an occupation closely related and directly essential to the production of goods for commerce. (3) The firemen guarded and protected instrumentalities of commerce, namely, a railroad, a telephone exchange, an express depot, and bus and freight terminals. General Electric concedes that it was engaged in the production of goods for commerce. It contends, however, that even though it produces goods for commerce, the duties of the community firemen do not bear such a relationship to that production as to bring them within the coverage of the Act. An employee is covered by the Act as amended if he is in an occupation “closely related” and “directly essential” to the production of goods for commerce. The employee’s work need not be indispensable to production. Roland Electric Company v. Walling, 1945, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Watchmen, engineers, firemen, carpenters and other maintenance personnel employed in a building where goods are physically manufactured or processed for commerce come within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118. In Borden Company v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, the Supreme Court not only reaffirmed its position in the Kirschbaum case but extended it. It was there held that officers and administrative personnel working in an office building owned and operated" }, { "docid": "14110626", "title": "", "text": "with salvaged material received from Modern. It is not at all clear that material sold by Modem was ever resold to New Haven Board and Carton Company. Certainly, we cannot assume that critical fact. Second, the Secretary failed to show that any of the use-plaintiffs ever collected the salvaged cardboard and waste paper or made delivery thereof to Bohager & Sons. Proof of employment of the use-plaintilfs in the production of goods for commerce was clearly absent. (c) Were Their Employments “Closely Related” and “Directly Essential” to the Production of Goods for Commerce? Whether the use-plaintiffs in these suits were “engaged in any closely related process or occupation directly essential to the production of goods for commerce” is the principal issue in this case. Relying upon testimony describing inconveniences and possible work stoppages anticipated by six of Modern’s customers if trash removal service were not available on a regular basis, the District Court found that the use-plaintiffs were engaged in work “closely related” and “directly essential” to the production of goods for commerce and held them within the coverage of the Act. Consideration of the facts of record in the light of cases interpreting the language of the Act convinces us that the trial judge erred in this holding and that the coverage of the Act should not be extended to include these employees. Basic to consideration and determination of this phase of the present case are three decisions in which the Supreme Court applied the language of section 3(j) of the Act prior to its amendment in 1949: Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); and 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945). In Kirschbaum the meaning of the phrase “necessary to the production [of goods for commerce].” was examined and it was held that coverage under the Act extended to employees of the owner of a loft building who were engaged in operation and maintenance thereof, where" }, { "docid": "1495630", "title": "", "text": "255(a). . The district court did not specifically determine what proportion of the policyholders of Daniel Insurance Company were out-of-state residents during the suit period, other than to denominate it as “substantial.” The only testimony on this matter indicated that approximately one-seventh of the policyholders were non-Arkansas residents. It is settled, and defendant does not contest, that an insurance company which conducts a substantial portion of its business transactions across state lines is engaged in commerce within the meaning of the Fair Labor Standards Act. United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944) ; Wirtz v. First State Abstract & Insurance Co., 362 F.2d 83 (8th Cir. 1966). . The district court also included in its single establishment definition a third corporation wholly owned by Mrs. Julia Mae Daniel and her daughter, Daniel Monument Company, Inc., whose sales office and display yard is located approximately one mile from the funeral home building in Searcy. The parties agree, however, that consideration of the monument company in the definition of the establishment for purposes of this appeal is immaterial, since its stipulated gross annual income is so small in comparison to that of the funeral home and insurance company as to have no mathematical effect on the critical 75 percent retail sales or services test of 29 U.S.C. § 213(a) (2). . Plaintiffs Gilreath and Johnson were held to be covered under the Act for the reason that their services — the custodial care and cleaning of the insurance company’s separate workroom — bore a dose and essential relationship to the functioning of the insurance company in which productive operations for commerce were carried on. See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945) ; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942) ; Union National Bank of Little Rock, Ark. v. Durkin, 207 F.2d 848 (8th Cir. 1953) ; Darr v. Mutual Life Insurance Company of New York, 169 F.2d 262 (2d Cir.), cert. denied, 335 U.S. 871, 69" }, { "docid": "14110627", "title": "", "text": "them within the coverage of the Act. Consideration of the facts of record in the light of cases interpreting the language of the Act convinces us that the trial judge erred in this holding and that the coverage of the Act should not be extended to include these employees. Basic to consideration and determination of this phase of the present case are three decisions in which the Supreme Court applied the language of section 3(j) of the Act prior to its amendment in 1949: Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); and 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945). In Kirschbaum the meaning of the phrase “necessary to the production [of goods for commerce].” was examined and it was held that coverage under the Act extended to employees of the owner of a loft building who were engaged in operation and maintenance thereof, where the tenants were principally engaged in the production of clothing for shipment in interstate commerce. The Court reasoned that, although the owner was in no way affiliated with the tenants and did not produce goods for commerce, the “work of the employees * * * had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it * * *” that the employees’ occupations were “necessary” to such production. In the Borden Co. case a similar conclusion was reached in holding the Act applicable to porters, elevator operators and night watchmen employed in the New York City office building owned by Borden Company, an interstate producer of food products, and largely tenanted by that company’s central offices, even though no production facilities were located in the building. The extensive and detailed supervision, management and control of operations maintained by executives and administrators located in the building were found to be just as essential to the productive activity of Borden’s scattered operating facilities as" }, { "docid": "11137956", "title": "", "text": "not bear such a relationship to that production as to bring them within the coverage of the Act. An employee is covered by the Act as amended if he is in an occupation “closely related” and “directly essential” to the production of goods for commerce. The employee’s work need not be indispensable to production. Roland Electric Company v. Walling, 1945, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Watchmen, engineers, firemen, carpenters and other maintenance personnel employed in a building where goods are physically manufactured or processed for commerce come within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118. In Borden Company v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, the Supreme Court not only reaffirmed its position in the Kirschbaum case but extended it. It was there held that officers and administrative personnel working in an office building owned and operated by a producer of goods for commerce are actually engaged in the production of goods, and employees who service and maintain such building are engaged in an occupation necessary to that production and come within the coverage of the Act. The factual situation of this and the Borden case is similar. Just as the heart of the Borden enterprise lies in its central office building where the entire business was supervised, managed and controlled, so here the heart of Hanford Works lies in the administrative area located in Richland and North Richland. Substantially the same activities carried on in the Borden office building were carried on in the Han-ford administrative offices. The language of the Supreme Court is particularly apt. “In this building the directors meet and the corporate officers conceive and direct the policies of the company. Although geographically divorced from the manufacturing plants, employees working in this building dictate, control and coordinate every step of the manufacturing processes in the individual factories. By means of direct teletype wires, they maintain detailed and meticulous" }, { "docid": "1495625", "title": "", "text": "in commerce within the meaning of the Fair Labor Standards Act except during the quarterly premium assessment months and one-half of each succeeding month. The first argument advanced by plaintiffs is that the district court improperly ignored a stipulation of the parties that, “at all times material to this law suit,” Daniel Insurance Company was engaged in interstate commerce. Coverage under the Fair Labor Standards Act, however, is dependent upon the character of the activities of each individual employee, not upon the nature of the employer’s business. Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 213, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959); Walling v. Jacksonville Paper Co., supra, 317 U.S. at 571-572, 63 S.Ct. 332; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Wirtz v. First State Abstract & Insurance Co., 362 F.2d 83, 87 (8th Cir. 1966); Chambers Construction Co. v. Mitchell, 233 F.2d 717, 720 (8th Cir. 1956). To be sure, the distinction drawn is not absolute and exclusive. “In determining whether an individual employee is within the coverage of the wage and hours provisions, however, the relationship of an employer’s business to commerce or to the production of goods for commerce may sometimes be an important indication of the character of the employee’s work.” 29 C.F.R. § 776.2 (b) (footnote omitted). See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945). The district court concluded in this case that the insurance company was engaged in commerce for a total of 6 months in each year, and also that plaintiffs were so engaged in commerce by performing work for the insurance company during that same period of time. But it does not follow that the identity of these two periods of time was mandatory. The parties did not stipulate as to the time period or extent of plaintiffs’ engagement in commerce, and the stipulation plaintiffs now assert could not have bound the district court on this separable and dispositive question. Plaintiffs next argue that, once having shown that they were engaged in" }, { "docid": "8706769", "title": "", "text": "contends that the classification by the municipality of its business as local for license tax purposes is persuasive evidence that it should be considered one of the class of establishments which renders a retail service. The district court took this fact into consideration but did not find it so. We agree with the district court. It is well settled that an enterprise is not free from federal regulation simply because it may be subject to taxation by a State or its subdivisions. But a classification made by a State or its subdivisions for such purposes is not binding upon Congress and, indeed, in this instance cannot affect the classification which that body has itself made for wholly different purposes. We are satisfied that the court did not err in holding that the defendant’s business is not entitled to exemption from the Act as a service establishment. The judgment of the district court will be affirmed. . The pertinent provisions of § 3 of the Fair Labor Standards Act are: “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C.A. § 203(b). . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 571-572, 63 S.Ct. 332, 87 L.Ed. 460; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. Lublin, McGaughy & Ass’n, 1959, 358 U.S. 207, 211-212, 79 S.Ct. 260, 3 L.Ed. 2d 243. . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 523, 62 S.Ct. 1116, 86 L.Ed. 1638. . Compare McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538; 10 East 40th St. Co. v. Callus, 1945, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. H. B. Zachry Co.," }, { "docid": "21035506", "title": "", "text": "BONDY, District Judge. This action was brought by maintenance employees in a building owned by the defendant, 149 Madison Avenue Corp., and operated by the defendant, Williams & Co., Inc., to recover unpaid overtime compensation, liquidated damages and a reasonable attorney’s fee pursuant to Secs. 7 and 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 207, 216(b). The building consists of a basement and 12 floors, each covering 7,700 square feet. Of the basement, only 3,850 square feet are rentable. The total rentable area of the building is 96,250 square feet. Maintenance employees of a building in which at least 20 per cent, of the rentable area is devoted to production of goods for interstate commerce are to be regarded as engaged in an occupation necessary to the production of goods for commerce and are covered by the Act. Baldwin v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524, 525, certiorari denied 66 S.Ct. 171; Fleming v. Post, 2 Cir., 146 F.2d 441, 443, 158 A.L.R. 1384; Gangi v. D. A. Schulte, 2 Cir., 150 F.2d 694, 696. See Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. A tenant is engaged in production of goods for interstate commerce if at least 20 per cent, of his activity is directed on the premises to the production of such goods, Fleming v. Post, supra, which authority is deemed binding on this court. Under Sec. 3(j) of the Act, 29 U.S.C.A. § 203(j), handling of goods incidental to their preparation for shipment in interstate commerce is sufficient to constitute production thereof. Baldwin v. Emigrant Industrial Savings Bank, supra; Fleming v. Post, supra. See Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 503, 65 S.Ct. 335. Testimony was given as to the extent of occupancy and the nature of the business of only five out of about twenty tenants. Lawrence Fertig & Co. were engaged in creating on the premises advertising material for their clients. They shipped from" }, { "docid": "19066838", "title": "", "text": "306 U.S. 601, 59 S. Ct. 668, 83 L.Ed. 1014. Also the fact that activities are intrastate in character, does not prevent those activities from “affecting commerce.” N. L. R. B. v. J. L. Hudson Co., 6 Cir., 135 F.2d 380, certiorari denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439; N. L. R. B. v. Vulcan Forging Co., 6 Cir., 188 F.2d 927, 930. In the Vulcan Forging Co. case we said: “Activities, intrastate in character when separately considered, fall within the ambit of control by Congress, if so closely and substantially related to interstate commerce that their control is essential or appropriate for its protection from burden or obstruction.” Compare: Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Borden Co. v. Bor ella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865. In our opinion, the work of respondent’s employees, although local in nature, had such a relationship to the interstate business of the tenants as to affect commerce. A labor dispute involving such employees would tend to burden or obstruct the free flow of commerce of the tenants therein. Respondent relies upon 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, which in distinguishing but not overruling Kirschbaum v. Walling, supra, held that running an office building, exclusively devoted to the purpose of housing all the usual miscellany of offices, had many practical differences from operating a manufacturing building such as was involved in the Kirschbaum case. It pointed out that in each case it was a question of degree in determining whether the particular activities were necessary to the production of goods for commerce. See: Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603, which was decided subsequent to the decision in the Callus case. The Callus case involved the Fair Labor Standards Act, not the National Labor Relations Act. Jurisdiction under the Fair Labor Standards Act is dependent upon an employee engaging “in the production of goods for commerce”. Sections 206, 207, Title 29, U.S.C.A. Under the" }, { "docid": "19120633", "title": "", "text": "F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52; Lofther v. First National Bank of Chicago, 7 Cir., 138 F.2d 299; Fox v. Summit King Mines, 9 Cir., 143 F. 2d 926; Walling v. Consumers Co., 7 Cir., 149 F.2d 626. No fixed and unyielding rule has been blueprinted for determining in every case whether an employee is engaged in the production of goods for commerce, within the meaning of the Act. Each case must depend upon its own facts. But there are certain general guides. It is not necessary that the employee come in actual physical contact with the goods produced. It is enough if his work constitutes an essential or useful part of an integrated effort by which goods are produced for commerce. It meets the requirements of the Act if the work of the employee has such “close and immediate tie with the process of production for commerce” that it is in effect a part of it. The criterion is-necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L. Ed. 118; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258; Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 665; Rucker v. First National Bank of Miami, 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065; Walling v. Amidon, 10 Cir., 153 F.2d 159. Here, certain agricultural commodities are produced on land irrigated with water furnished by the irrigation company. The agricultural commodities are processed and the finished products move in the channels of interstate commerce. Irrigation of the land is necessary in order" }, { "docid": "19120634", "title": "", "text": "The criterion is-necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L. Ed. 118; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258; Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 665; Rucker v. First National Bank of Miami, 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065; Walling v. Amidon, 10 Cir., 153 F.2d 159. Here, certain agricultural commodities are produced on land irrigated with water furnished by the irrigation company. The agricultural commodities are processed and the finished products move in the channels of interstate commerce. Irrigation of the land is necessary in order to produce the agricultural commodities. The employees in question perform physical work which is indispensable to the irrigation of the land. Without their work, the land cannot be irrigated, the agricultural commodities cannot be produced, and therefore no finished products can move in interstate commerce. The relationship of the employees to the production of the finished products which move in interstate commerce is not objectionably remote or tenuous. Instead, their work is vital and essential to the integrated effort which brings about the movement of the finished products in commerce. ' It is manifestly clear that the employees are engaged in a process or occupation necessary to the production of goods for commerce, within the meaning of the Act. Reynolds v. Salt River Valley Water Users Ass’n., 9 Cir., 143 F.2d 863, certiorari denied 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611; Walling v. Friend, 8 Cir., 156 F.2d 429; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698; McComb v. Super-A Fertilizer Works, 1 Cir., 165 F.2d 824. We" }, { "docid": "1495631", "title": "", "text": "of the establishment for purposes of this appeal is immaterial, since its stipulated gross annual income is so small in comparison to that of the funeral home and insurance company as to have no mathematical effect on the critical 75 percent retail sales or services test of 29 U.S.C. § 213(a) (2). . Plaintiffs Gilreath and Johnson were held to be covered under the Act for the reason that their services — the custodial care and cleaning of the insurance company’s separate workroom — bore a dose and essential relationship to the functioning of the insurance company in which productive operations for commerce were carried on. See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945) ; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942) ; Union National Bank of Little Rock, Ark. v. Durkin, 207 F.2d 848 (8th Cir. 1953) ; Darr v. Mutual Life Insurance Company of New York, 169 F.2d 262 (2d Cir.), cert. denied, 335 U.S. 871, 69 S.Ct. 166, 93 L.Ed. 415 (1948). . In its present form, 29 U.S.C. § 213(a) (2) reads in pertinent part as follows: “(a) The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to— * * * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— (i) is not in an enterprise described in section 203 (s) of this title, or * * * Hi * (iv) is in such an enterprise and has an annual dollar volume of sales * * * which is less than $250,000. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * *" }, { "docid": "14596924", "title": "", "text": "corporations are the owners of about fifteen buildings in the City of New York. All the plaintiffs except Roberg were employed as painters and decorators in all of these buildings. Their claims herein concern, however, only the three buildings noted above. Of these, the two office buildings adjoin each other at 580 Fifth Avenue and 1-11 West 47th Street. Roberg was a, window cleaner employed exclusively at the office buildings. In their capacity as maintenance workers, plaintiffs were not themselves engaged in interstate commerce; they were, however, engaged in the production of goods for such commerce if a sufficient number of the tenants serviced by them were so engaged. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; 10 East 40th St. Bldg., Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, 161 A.L.R. 1263; Baldwin v. Emigrant Industrial Sav. Bank, 2 Cir., 150 F.2d 524, 161 A.L.R. 1234, certiorari denied Emigrant Industrial Sav. Bank v. Baldwin, 66 S.Ct. 171; Fleming v. Post, 2 Cir., 146 F.2d 441, 158 A.L.R. 1384. In the present case the District Court held that the tenants producing goods for interstate commerce must occupy at least 20 per cent of the rentable space in order for the building maintenance workers to be covered. Finding that the loft building was occupied exclusively by tenants engaged in production of goods for interstate commerce, it gave judgment for the six painters there employed, but only to the extent of that employment. It found that the office buildings lacked 695 sq. ft. of the necessary 20 per cent space devoted to interstate production, and denied coverage of those buildings on that ground. Alternatively, it held that the type of work done by plaintiffs was in any case too far removed from commerce to come within the terms of the Act. On appeal, plaintiffs attack this calculation of the space devoted to interstate commerce; and defendants urge that the nature of the work done precluded recovery even at the loft building. Since all the facts were stipulated, our problem is one" }, { "docid": "2874473", "title": "", "text": "and 6.5% of such area was occupied by concerns carrying on physical production of goods for commerce in the building. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945), it was held that custodial and service employees of an office building principally occupied by the executive offices of a concern which owned the building and which carried on extensive production of goods for commerce elsewhere were engaged in the production of goods for commerce. In D. A. Schulte Co. v. Gangi, 328 U.S. 108, at page 118, 66 S.Ct. 925, at page 930, 90 L.Ed. 1114 (1946), the Court, though dealing with a different problem, said: “ * * * While the Wage-Hour Act covers employees engaged in the production of goods for commerce, a maintenance employee working for a building corporation which furnishes loft space to tenants can hardly be so engaged unless an adequate proportion of the tenants of that building are so engaged. Kirschbaum [Co.] v. Walling, 316 U.S. at page 524 [62 S.Ct. 1116, 86 L.Ed. 1638]; Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 [63 S.Ct. 332, 87 L.Ed. 460].” Prom these cases we conclude that building employees are, by virture of the nature of the work carried on in the building, engaged in the production of goods for commerce (1) if a sufficiently large portion of the space in the building is used for the physical production of goods for commerce (Kirschbaum) or (2) if a sufficiently large portion of the space in the building is occupied by the offices of a concern which owns the building and which is engaged elsewhere in the physical production of goods for commerce (Borden Co.). But we also conclude that building employees are not engaged in the production of goods for commerce if the building is occupied by a miscellany of tenants even though a substantial portion of the space is occupied by offices of tenants which are engaged elsewhere in the production of goods for commerce (Callus). In the instant case, defendant occupies about 11% of the space in" }, { "docid": "6172494", "title": "", "text": "absence, in view of the remoteness of plaintiff’s work from the actual production of the goods for commerce, and in view of his employment by an independent contractor and the essentially local nature of restaurants and cafeterias generally, we must hold his work to be local in nature, even though there is one factor in his favor, that of employment solely in the same building where the production is carried on. Congress might have considered that hour and wage conditions throughout such a building should meet a common minimum and have so provided. That has not, however, been made the criterion, but rather whether the work is “necessary to the production” or “local”. The combination of factors here seems better to fit the “local” label. Judgment may be entered for the defendant, dismissing the action. There may be a question whether the 1947 Amendments to the Act, 29 U.S. C.A. § 216, permit only recovery of unpaid overtime, without liquidated damages, etc., in such a “windfall” ease, where both parties in good faith thought the Act not applicable, and the total pay would have been sufficient to more than meet the minimum requirements of the Act had hours and hourly rates been set with the Act in mind. Kirschbaum Oo. v. Walling, Adm’r, 1942, 316 U.S. 517, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638. Roland Electrical Co. v. Walling, Adm’r, 1946, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Kirschbaum Co. v. Walling, Adm’r, supra, n. 2; Martino v. Michigan Window Cleaning Co., 1946, 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S. Ct. 1223, 89 L.Ed. 1865, 161 A.L.R. 1258; 10 East 40th St. Building, Inc. v. Callus, 1945, 325 U.S. 578, 65 S.Ct 1227, 89 L.Ed. 1806, 161 A.L.R. 1263; D. A. Schulte, Inc. v. Gangi et al., 1946, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114, 167 A.L.R. 208. Consolidated Timber Co. v. Womack, 9 Cir., 1942, 132 F.2d 101; Hanson v. Lagerstrom, 8 Cir., 1943, 133 F.2d 120; Kuhn v. Canteen, D.C.N.D.Ill.W.D., Nov. 25," }, { "docid": "12194309", "title": "", "text": "policy may be used as security for a loan from the company or be surrendered for its cash value. Moreover, provided insurable interest requirements - are met, ■the policy may be assigned at any time to third parties. These things being true we ■think it cannot be said that the policy is merely “evidence” of the obligation. The broad definition of “goods” .contained in section 3 of the Fair Labor Standards Act includes “subjects of commerce of any character.” We think, following Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414, that under the equally broad definition of “produced” in the Act, .these insurance policies are goods produced for commerce, indeed, as much so as the commercial paper held to be such in Bozant v. Bank of New York, 2 Cir., 156 F.2d 787, and for substantially the same reasons. See also Baldwin v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524, 161 A.L.R. 1234, certiorari denied, 326 U.S. 767, 66 S.Ct. 171. Since maintenance employees like the plaintiffs are “necessary” to the production of such goods, they are within the coverage of the Fair Labor Standards Act. The case is a fortiori to Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258, where the “goods” were not “produced” at the office building in which -the employees worked. Decision on the second point requires a more complete statement of the nature of the suit and of the events which led up to the judgment from which this appeal was taken. Suit was brought on April 11, 1946 in behalf of the plaintiffs, and all other present and former employees of the defendant who were in similar situation, to recover for the period beginning April 12, 1940 and -ending at -the -time when the defendant voluntarily began to pay the wages the plaintiffs claimed to be due them pursuant to the statute. That period was in part when the statute required overtime payment for hours worked in excess of 42 per week and in part when" }, { "docid": "2874472", "title": "", "text": "manufacturing in the buildings are engaged in the production of goods for commerce within the meaning of the Act. The Court said that (p. 525, 62 S.Ct. p. 1121) “ * * * the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce’.” In 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945), i(; was held that maintenance, custodial and service employees of an office building having a miscellany of tenants were not engaged in the production of goods for commerce. The Court reached this result in spite of the fact that, as pointed out by the dissent at pp. 586-587, 26% of the rentable area was occupied by executive offices of mining and manufacturing concerns engaged elsewhere in the production of goods for commerce and 6.5% of such area was occupied by concerns carrying on physical production of goods for commerce in the building. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945), it was held that custodial and service employees of an office building principally occupied by the executive offices of a concern which owned the building and which carried on extensive production of goods for commerce elsewhere were engaged in the production of goods for commerce. In D. A. Schulte Co. v. Gangi, 328 U.S. 108, at page 118, 66 S.Ct. 925, at page 930, 90 L.Ed. 1114 (1946), the Court, though dealing with a different problem, said: “ * * * While the Wage-Hour Act covers employees engaged in the production of goods for commerce, a maintenance employee working for a building corporation which furnishes loft space to tenants can hardly be so engaged unless an adequate proportion of the tenants of that building are so engaged. Kirschbaum [Co.] v. Walling, 316 U.S. at page 524 [62 S.Ct. 1116, 86" }, { "docid": "6312877", "title": "", "text": "by reading the word ‘necessary’ in the highly restrictive sense of ‘indispensable,’ ‘essential,’ and ‘vital’ — words it finds in previous pronouncements of this Court dealing with this clause. Kirschbaum Co. v. Walling, 316 U.S. 517, 524-526, 62 S.Ct. 1116, 1120, 1121, 86 L.Ed. 1638; Overstreet v. North Shore Corp., 318 U.S. 125, 129, 130, 63 S.Ct. 494, 497, 498, 87 L.Ed. 656. These and other cases, says petitioner, indicate that in applying the Act a distinction must be made between those processes or occupations which an employer finds advantageous in his own plan of production and those without which he could not practically produce at all. Present respondents, it contends, clearly fall within the former category because soap can be and in many other plants is produced without the kind of fire protection which these employees provide. “The argument would give an unwarranted rigidity to the application of the word ‘necessary/ which has always been recognized as a word to be harmonized with its context. See McCulloch v. Maryland, 4 Wheat. 316, 413, 414, 4 L.Ed. 579. No hard and fast rule will tell us what can be dispensed with in ‘the production of goods.’ All depends upon the detail with which that bare phrase is clothed. * * * What is required is a practical judgment as to whether the particular employer actually operates the work as part of an integrated effort for the production of goods.” In 10 East 40th Street Building, Inc., v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806, 161 A.L.R. 1263, the court was concerned with the maintenance employees of an office building used for offices by every variety of tenants including some producers for interstate commerce. And it held that they did not have such a close and immediate tie with the process of production, as to be deemed engaged in an operation “necessary for the production” of goods for commerce within the meaning of the Act. In Borden Company v. Borella et al., 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L.R. 1258, the maintenance employees" } ]

[ { "docid": "22749312", "title": "", "text": "and appellate review”). JOSÉ A. CABRANES, Circuit Judge, dissenting. I respectfully dissent. Based on the record as a whole, I believe that a reasonable fact-finder could have declined to credit Secaida’s testimony and, therefore, substantial evidence supports the denial of Secaida’s application for asylum and for withholding of removal. When considering a petition for review of a deportation order, the scope of our inquiry is “exceedingly narrow.” Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). We accept the immigration court’s factual determinations as long as they are supported by substantial evidence in the record, giving particular deference to credibility determinations, see Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997), and “[w]e reverse only if no reasonable fact-finder could have failed to find the past persecution or fear of future persecution necessary to sustain the petitioner’s burden,” Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). In other words, “[w]e review the IJ’s and BIA’s credibility findings for substantial evidence and, thus, must uphold the findings unless the evidence presented compels a reasonable factfinder to reach a contrary result.” De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997). In view of this legal standard, I believe the majority errs in reversing the IJ’s credibility determination. Specifically, I believe that a reasonable fact-finder could conclude that Secaida was not credible on the ground that his asylum application failed to mention a central aspect of his trial testimony — namely, that Pineda shot at him. The majority admits that this omission from Secaida’s asylum application was “arguably material to the basis for Secaida’s claim of asylum and with holding.” Maj. Op., ante, at 312. In my view, this testimony is clearly material because it is the only direct evidence that any members of the death squad ever tried to kill Secaida. Although Secaida claims that the death squad attempted to assassinate him by hitting him with a car, he was not able to identify the driver of the automobile and provided no other basis for concluding that Pineda’s death squad was responsible for this accident. And while Secaida" } ]

[ { "docid": "22643739", "title": "", "text": "was credible, she had not established past persecution or a well-founded fear of future persecution. In a short opinion, the BIA “adopted[ed] and affirm[ed]” the IJ’s decision and added two sentences that agreed with the IJ’s finding that, even if Chen was credible, she had not established a basis for asylum eligibility. Discussion In immigration cases, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s fact-finding under the substantial evidence standard. See, e.g., Cao He Lin v. U.S. DOJ, 428 F.3d 391, 400 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where a denial of relief is based on a finding that a petitioner’s application is not credible, our review is “highly deferential.” Zhou Yi Ni v. U.S. DOJ, 424 F.3d 172, 174 (2d Cir.2005). I. The Decision(s) To Be Reviewed The BIA has employed different techniques in affirming IJ decisions, and the varying techniques affect the scope of our review. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 158 (2d Cir.2004). Similarly, when the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). When the BIA agrees with the IJ’s conclusion that an asylum applicant is not credible and emphasizes particular aspects of the IJ’s decisions, we review both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir. 2005). When the BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong" }, { "docid": "22073635", "title": "", "text": "credibility determination principally upon his observations that (1) during his initial airport interview, Chen failed to mention an altercation he purportedly had with family planning officials, but later referenced the altercation in his asylum application and subsequent testimony; (2) Chen did not offer a plausible explanation for why he asserted at his airport interview— and then later abandoned the claim — that his wife had gone missing and was being sought by Chinese authorities; (3) it was implausible that Chinese officials would not have searched for Chen at his karaoke business, given that government officials later sealed off the business following Chen’s flight; (4) it was impossible to determine based on the foregoing and the evidence presented whether his wife’s abortion occurred, or if it did occur, whether it was voluntary or coerced; and (5) the petitioner made unsupported and concluso-ry statements suggesting that individuals known to his family were subjected to beatings and abusive treatment upon their return to China. Where, as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 156-58 (2d Cir.2006); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We give “particular deference to the credibility determinations of the IJ.” Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). Accordingly, “[wjhere the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). We hold that the" }, { "docid": "22768088", "title": "", "text": "As to Liu’s application for CAT relief (denied on the ground that Liu failed to show that it was more likely than not he would be tortured if removed to China), Liu’s brief on appeal makes no reference to his CAT application (or to torture generally), so that argument is deemed forfeited. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (stating that where petitioner “devotes only a single eonclusory sentence to the argument” in support of a claim for relief, “we ... deem his petition for review of the IJ’s finding as to [that] claim abandoned and do not consider it”). When, as here, the BIA affirms the IJ’s decision in all respects but one, the Court reviews the IJ’s decision “as modified by the BIA’s decision — that is, minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the BIA’s factual findings under the substantial evidence standard, including those “underlying the immigration court’s determination that an alien has failed to satisfy his burden of proof,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam), treating the findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). The BIA’s conclusion — that Liu failed to establish that it is “more likely than not” that he would be persecuted on account of his involvement in the June Fourth Movement — is supported by substantial evidence. Liu testified that after he was released from detention in 1991, he left and returned to China numerous times, and that the Chinese government issued a passport to him in 2002 because he had been out of detention “for many, many years.” Thus any presumption of future persecution that might be based on Liu’s detention in connection with the June Fourth Movement would be rebutted by a fundamental change in circumstances. See 8 C.F.R. § 208.16(b)(l)(i)(A) (presumption of a future risk of persecution may be rebutted by showing a" }, { "docid": "22745467", "title": "", "text": "Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inher ently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). We require, however, that the IJ’s reasons for an adverse credibility finding be “specific” and “cogent,” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), and that a “ ‘legitimate nexus’ ” exist between these reasons and “petitioner’s claim of persecution,” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (quoting Secaida-Rosales, 331 F.3d at 307). In sum, the “exceedingly narrow” scope of our review, Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993), is designed to ensure merely that “credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” Zhou Yun Zhang, 386 F.3d at 74. Our role does not extend to “hypothesizing] excuses for the inconsistencies” in an asylum applicant’s testimony. Id. In this case, we conclude that the first discrepancy identified by the IJ— petitioner’s “dramatically different” accounts of the 1993 incident — offers substantial evidence in support of the IJ’s adverse credibility finding. On March 4, 1999, petitioner submitted a “supplemental statement” in support of his asylum application, recounting four incidents of persecution that he suffered “due to ... membership in” the Jatiya Party. Only a single incident occurred in 1993, and petitioner described the event as follows: “[MJembers of the BNP came to my home and ransacked my house in front of my family. They insulted ■ my" }, { "docid": "22707478", "title": "", "text": "problems prevented sterilization. Fearing intensification of the authorities’ efforts to arrest him, Lin fled in 1994 from Hunan to the Guangxi Autonomous Region. He hid there until he left for the United States in 2001. II At the conclusion of the May 2002 hearing, the IJ issued an oral opinion denying asylum and withholding of removal. The IJ’s decision rested on an adverse credibility finding which, in turn, was based primarily on (i) numerous minor discrepancies between Lin’s application and his testimony, and within his testimony itself; (ii) an inconsistency between the 1998 State Department Country Profile of China and Lin’s testimony; and (iii) Lin’s demeanor. The BIA affirmed the IJ’s order without opinion. III When the BIA affirms without opinion, we review the IJ’s decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ’s factual findings under the substantial evidence standard, which is met “unless any reasonable adjudicator would be compelled to conclude to the contrary.” § 1252(b)(4)(B); see Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004); see also Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We typically afford “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhang, 386 F.3d at 73 (internal quotation marks omitted). Our review of a credibility finding is essentially to ensure that it is “based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (explaining that an adverse credibility finding must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the applicant’s credibility) (internal quotation marks omitted). The IJ relied on three main grounds that we hold are together sufficient to support the adverse credibility finding: (1) The IJ" }, { "docid": "22745466", "title": "", "text": "in the supplement to petitioner’s asylum application and in petitioner’s testimony; (2) the inconsistencies in the timing of the events surrounding the death of petitioner’s brother; (3) the lack of evidence to corroborate the brother’s death; (4) the inconsistencies in petitioner’s accounts of his departure from Bangladesh and of his arrival to the United States; (5) the inconsistencies between petitioner’s testimony and the Department of State report regarding conditions in Bangladesh; and (6) petitioner’s “extremely unresponsive and evasive” demeanor at his asylum hearing. In affirming the IJ’s decision, the BIA concluded that the first of the grounds supporting the IJ’s adverse credibility finding was, standing alone, “material and dispositive.” Petitioner now challenges the BIA’s af-firmance of the IJ’s 'adverse credibility finding. DISCUSSION Where, as here, the BIA affirmed the IJ’s decision to deny asylum by brief order, we review the IJ’s decision rather than the BIA’s order. See Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). It cannot be overstated that our review of the IJ’s credibility findings is highly deferential, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inher ently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). We require, however, that the IJ’s reasons for an adverse credibility finding be “specific” and “cogent,” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), and that a “ ‘legitimate nexus’ ” exist between these reasons and “petitioner’s claim of persecution,” Xu Duan Dong v. Ashcroft, 406 F.3d 110," }, { "docid": "21874059", "title": "", "text": "PER CURIAM. Petitioner You Hao Yang (“Yang”), a citizen of the People’s Republic of China, seeks review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming the decision of an immigration judge (“IJ”). The IJ rejected Petitioner’s application for asylum and withholding of removal under the Immigration and Nationality Act of 1952, see 8 U.S.C. §§ 1158(a), 1231(b)(3)(A), on the ground that Petitioner was not credible. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented in the petition for review, which we reference only as necessary to explain our decision. Where, as here, the BIA summarily affirms an IJ’s opinion, we review the decision of the IJ directly. See Dhoumo v. BIA 416 F.3d 172, 174 (2d Cir.2005) (per curiam) (citing Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003)). We typically afford “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ'has the unique advantage among all officials involved in the- process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Accordingly, our review of an IJ’s credibility determination is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously.” Id. at 74 (internal quotation marks and citations omitted). An IJ’s credibility findings cannot, however, be based upon either “a misstatement of the facts in the record [or] bald speculation or caprice.” Id. In the instant case, we. find that none of the six reasons given by the IJ to support his adverse credibility finding are free of error. (1) The IJ first stated that Petitioner’s documentary evidence “in no way substantiate[d]” his testimony, and, “in fact, undermine[d] it.” But the IJ neither identified pieces of evidence that he believed were necessary to support Petitioner’s asylum claim, nor did he explain how Petitioner’s submissions contradicted his testimony. Because we require an IJ to articulate “specific, cogent reasons” to support a credibility finding, see Secaida-Rosales," }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "13631837", "title": "", "text": "of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions of law. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir.2005). The IJ’s factual findings, however, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will affirm the IJ’s factual determinations provided they are “supported by ‘reasonable, substantial, and probative’ evidence in the record,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)), and were “not reached arbitrarily or capriciously,” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 74 (2d Cir.2004). B. Asylum and Withholding of Removal To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 70 (quoting 8 U.S.C. § 1101(a)(42)). The standard for withholding of removal is higher, see id. at 71, requiring a showing that “it is more likely than not” that the applicant’s “ ‘life or" }, { "docid": "23344900", "title": "", "text": "PER CURIAM. Petitioner Zhou Yi Ni, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of an October 28, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a November 23, 1999 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Petitioner also appeals the BIA’s denial of a remand for consideration of his claims under the Convention Against Torture (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We begin by addressing petitioner’s application for asylum and withholding of removal. Where, as here, the BIA summarily affirmed the IJ’s decision to deny asylum, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Petitioner’s asylum claim rests on the persecution he allegedly suffered for violating China’s coercive family planning policy. In particular, petitioner testified that his wife was involuntarily sterilized by China’s authorities after the birth of the couple’s second child. Petitioner further claimed that, upon return to China, he would be persecuted for having fathered two children. The IJ found petitioner not credible, based in part on serious contradictions between petitioner’s account of his wife’s sterilization and his wife’s own asylum application. The IJ also found that petitioner had not established that he had himself suffered past persecution or that he had a well-founded fear of future persecution. Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude" }, { "docid": "22723027", "title": "", "text": "PER CURIAM. Jin Ming Liu, a citizen of China, petitions for review of the October 2004 denial by the Board of Immigration Appeals (“BIA”) of his motion to reconsider the BIA’s July 2004 order that affirmed without opinion an order of an immigration judge (“IJ”) that (1) denied his requests for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, and (2) directed his removal to China. According to Liu’s asylum application, he fled China to escape compulsory family planning and persecution on account of his Catholic faith. Liu’s petition contends that the BIA erred because there are “new facts” and because the birth of his three children “constitutes a change in [his] circumstances such that he is at risk of persecution under China’s coercive population planning policy if he returns to that country.” Liu and the government both ask us to review the merits of Liu’s asylum claim and the IJ’s adverse credibility determination based on the substantial evidence standard. However, Liu did not petition this Court for review of the BIA’s July 2004 summary affirmance, but rather of the BIA’s October 2004 denial of his motion to reconsider. Our review is, therefore, limited to the BIA’s denial of Liu’s motion to reconsider his asylum application; accordingly, we are “ ‘precluded from passing on the merits of the underlying exclusion proceedings.’ ” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (quoting Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001)). The BIA’s denial of a motion to reconsider is reviewed for abuse of discretion. See Kaur, 413 F.3d at 233. An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 233-34 (quoting Zhao, 265 F.3d at 93). A motion for reconsideration “is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument" }, { "docid": "23329832", "title": "", "text": "asked that the IJ “consider [his] claim in light of [his] new situation.” Id. ¶ 1. On July 22, 1999, the IJ held a hearing on the merits of Xie’s application. In his oral decision denying the application, the IJ noted that the government had stipulated that Xie “might very well be eligible for asylum” as a result of his “well-founded fear” of being persecuted by China’s family planning policies. In re Zhang Jian Xie, No. [ A XX XXX XXX ] (DOJ Immig. Ct. July 22, 1999), Oral Dec. Tr. at 2. But the IJ found that, by assisting in the transportation of women to hospitals where they underwent forced abortions, Xie “had a hand in implementing the policy which we now define as persecution.” Id. at 5. He concluded that Xie could therefore not be deemed a refugee within the meaning of 8 U.S.C. § 1101(a)(42) and was consequently not eligible for asylum. The IJ denied Xie’s application for withholding of removal on the same grounds. Xie appealed to the BIA, which summarily affirmed the IJ’s decision. This petition followed. DISCUSSION I. Standard of Review “It is well-settled that when the BIA summarily affirms an IJ’s decision, we review the decision of the IJ directly.” Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 189 (2d Cir.2005). In reviewing asylum determinations, we defer to the factual findings of ... the IJ if they are supported by substantial evidence. Under this standard, we will not disturb a factual finding if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole. Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks, citations and footnote omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We review the IJ’s conclusions of law de novo. Guan Shan Liao" }, { "docid": "22461171", "title": "", "text": "his departure, unwitting Indian authorities continued to visit his family’s home in attempts to detain him. After holding a hearing on the merits of Singh’s applications on March 30, 2001, the IJ made an adverse credibility finding against Singh, denied Singh’s applications for asylum and withholding of removal and granted Singh’s application for voluntary departure. On appeal, the BIA summarily affirmed the IJ’s order. “Where, as here, the BIA has affirmed the IJ’s decision without an opinion, we review the IJ’s decision directly under a standard of ‘substantial evidence.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 150 (2d Cir.2006); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We engage in an “ ‘exceedingly narrow’ ” review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), that involves “looking] to see if the IJ has pro vided ‘specific, cogent’ reasons for the adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)). Our “review is designed to ensure merely that ‘credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.’ ” Xiao Ji Chen, 434 F.3d at 157 (quoting Zhou Yun Zhang, 386 F.3d at 74). Although our review of an IJ’s denial of asylum and withholding of removal on credibility grounds is “highly deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005), “an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture.” Xiao Ji Chen, 434 F.3d at 158 (citing Secaida-Rosales, 331 F.3d at 307, 312). When an" }, { "docid": "22073636", "title": "", "text": "IJ’s decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 156-58 (2d Cir.2006); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We give “particular deference to the credibility determinations of the IJ.” Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). Accordingly, “[wjhere the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). We hold that the IJ’s adverse credibility determination was supported by substantial evidence. Although the observations emphasized by the IJ do not — when considered in the context of the full record— unambiguously militate in favor of an adverse credibility determination, they also do not strongly suggest, much less “compel,” a contrary conclusion. See Wu Biao Chen v. INS, 344 F.3d 272, 274 (2d Cir.2003); see also Zhou Yun Zhang, 386 F.3d at 73 (“Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary.”). The IJ in this case properly considered each of the potential discrepancies in petitioner’s account of his persecution. Moreover, he provided an opportunity for petitioner to clarify or explain his previous statements. Although a reasonable fact-finder could have disagreed with the IJ’s ultimate assessment of petitioner’s responses, we do not find that the IJ’s assessment was based upon “a misstatement of the facts” or upon “bald speculation or caprice.” Zhou Yun Zhang, 386 F.3d at 74 (“[O]ur review is meant to" }, { "docid": "22537455", "title": "", "text": "as persecution on the basis of political opinion). Consequently, if petitioner had demonstrated to the IJ that there was a clear probability that she would be sterilized if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” IJ Decision at 9. Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ. See 8 U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence,” see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where, as here, the IJ bases his denial of asylum and withholding of removal on a finding that a petitioner’s application is not credible, our review is “highly deferential.” See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005) (“Reviewing a factfinder’s determination of credibility is ill-suited to attempts to fashion rigid rules of law.”); Zhou Yun Zhang, 386 F.3d at 73 (“When a factual challenge pertains to a credibility finding made by an IJ ... we afford ‘particular deference’ in applying the substantial evidence standard.”) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, “[w]here the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about" }, { "docid": "22663606", "title": "", "text": "if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” IJ Decision at 9. Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ. See 8 U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence,” see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where, as here, the IJ bases his denial of asylum and withholding of removal on a finding that a petitioner’s application is not credible, our review is “highly deferential.” See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005) (“Reviewing a factfinder’s determination of credibility is ill-suited to attempts to fashion rigid rules of law.”); Zhou Yun Zhang, 386 F.3d at 73 (“When a factual challenge pertains to a credibility finding made by an IJ ... we afford ‘particular deference’ in applying the substantial evidence standard.”) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, “[w]here the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to" }, { "docid": "22759369", "title": "", "text": "Present: MINER, SACK, SOTOMAYOR, Circuit Judges. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review of the decision of the Board of Immigration Appeals (“BIA”) is hereby DENIED. Yu Yin Yang petitions for review of a BIA decision affirming the Immigration Judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We assume the parties’ familiarity with the underlying facts and procedural history. This Court generally reviews only the final order of the BIA, but when the BIA adopts the IJ’s decision and supplements it, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the IJ’s and BIA’s factual findings under the substantial evidence standard, and as such, “a finding will stand if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). This Court also uses the substantial evidence standard to review credibility determinations, and its review of an adverse credibility determination is “highly deferential.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005)(per curiam). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his [or her] claims of persecution, or on contrary evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004). In this case, the IJ and BIA found that the following discrepancies, inconsistencies, and implausibilities, inter alia, caused Yang’s testimony not to be credible: (1) Yang testified that she had an IUD inserted in January 1998, but submitted a document reflecting that she had an IUD inserted in July 1998; (2) Yang testified that after the IUD was inserted, she was required to undergo three or four" }, { "docid": "22620317", "title": "", "text": "PER CURIAM. Jin Hui Gao, a native and citizen of the People’s Republic of China, petitions this Court for review of an August 29, 2003, order of the Board of Immigration Appeals (“BIA”) summarily affirming a January 16, 2002, oral decision of an immigration judge (“IJ”) which denied Gao’s application for asylum and withholding of removal. At his hearing before the IJ, Gao testified that he had experienced persecution in China due to his failure to comply with China’s coercive population control policy, that his wife had been forced to submit to an involuntary abortion, and that he feared that, if he returned to China, he would be subjected to further persecution. The IJ denied Gao’s application based on his finding that Gao was not credible. Specifically, the IJ found that Gao was “non-responsive or evasive at times,” and that Gao “appeared to be an individual who tried to memorize a claim and was repeating it back, rather than testifying in a respons[iv]e or a spontaneous manner about experiences that actually occurred to him.” In addition to these observations as to Gao’s demeanor, the IJ found that critical aspects of Gao’s testimony were implausible and that there were significant discrepancies among Gao’s testimony at the hearing, his asylum application, and his “credible fear interview” before an asylum officer. The IJ therefore concluded that Gao’s testimony could not be credited and, because it was not supplemented by more extensive corroborating evidence, insufficient to support Gao’s asylum application. On appeal, Gao principally argues that the IJ improperly found aspects of Gao’s story implausible and that the IJ overemphasized, and failed to take into account legitimate reasons for, discrepancies between Gao’s testimony and his asylum application. Our review of the IJ’s credibility finding is highly deferential. See Zhang v. U.S. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (recognizing that “we afford ‘particular deference’ in applying the substantial evidence standard” to an IJ’s credibility finding). The IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(B). Under this highly deferential" }, { "docid": "19272759", "title": "", "text": "are not immutable, and there was insufficient evidence that similarly-situated Guatemalans would be identified by would-be persecutors. The IJ also found petitioners’ stories not credible, citing inconsistencies between their airport statements and their testimony at the asylum hearing. In addition, the IJ found that petitioners failed to establish a well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(2), because nothing in the admitted background materials or country reports indicated that wealthy Guatemalans “are specifically targeted for persecution.” Because petitioners failed to demonstrate the requisite well-founded fear, the IJ ruled that they failed to meet the clear probability standard required for withholding of removal under § 241(b)(3) of the INA. Finally, the IJ concluded that their CAT claim was baseless because they had no fear of any actions against them by the government of Guatemala. Accordingly, the IJ ordered petitioners removed to Guatemala. The BIA affirmed without opinion. DISCUSSION I When the BIA affirms without opinion, we review the IJ’s decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ’s factual findings under the substantial evidence standard, which is met “unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004); see also Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We typically afford “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang, 386 F.3d at 73 (internal quotation marks omitted). Our review of a credibility finding is to ensure that it is “based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (explaining that an adverse credibility finding must be based on" }, { "docid": "22316571", "title": "", "text": "PER CURIAM. Petitioner Xu Duan Dong, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of a December 16, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a December 29, 1997 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and for withholding of removal. At the hearing before the IJ, petitioner testified that, having fathered three children, he had suffered persecution, including forcible sterilization, under China’s family-planning policy, and that he had a well-founded fear of further persecution upon return to China. The IJ found petitioner to be not credible, citing inconsistencies among petitioner’s testimony and other evidence in the record, the lack of corroborating documentary evidence, failure of petitioner’s allegations to comport with record evidence on conditions in China, and petitioner’s demeanor at the hearing. Where, as here, the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). In this case, the IJ found that an essential factual allegation underlying petitioner’s asylum claim — that he was forced to undergo surgical sterilization without an anesthetic—was omitted from petitioner’s three asylum applications. Although petitioner eventually alleged—in a brief affidavit supplementing his third asylum application—that he was forcibly sterilized, the IJ reasoned that a delay" } ]

[ { "docid": "22580462", "title": "", "text": "of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest— “(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse.” 26 U. S. C. (1952 ed.) § 812 (e) (1) (B). The marital-deduction and terminable-interest provisions of the 1954 Code are similar to those of its 1939 counterpart. See 26 U. S. C. (1958 ed.) §2056 (a) and (b). S. Rep. No. 1013, Part 2, 80th Cong., 2d Sess., p. 3. The legislative history states: “In practice [the support allowance deduction] has discriminated in favor of estates located in States which authorize liberal allowances for the support of dependents, and it has probably also tended to delay the settlement of estates.” S. Rep. No. 2375, 81st Cong., 2d Sess., p. 57. United States v. First National Bank & Trust Co. of Augusta, 297 F. 2d 312 (C. A. 5th Cir.); Estate of Gale v. Commissioner, 35 T. C. 215; Estate of Rudnick v. Commissioner, 36 T. C. 1021. Bookwalter v. Lamar, 323 F. 2d 664 (C. A. 8th Cir.); United States v. Mappes, 318 F. 2d 508 (C. A. 10th Cir.); Commissioner v. Ellis’ Estate, 252 F. 2d 109 (C. A. 3d Cir.); Starrett v. Commissioner. 223 F. 2d 163 (C. A. 1st Cir.); Estate of Sbicca v. Commissioner, 35 T. C. 96. “For the purposes of subparagraph (B) an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail upon the death of such spouse if— “(i) such death will cause a termination or failure of such interest only if it occurs within a" } ]

[ { "docid": "16913957", "title": "", "text": "shall be held as hereinafter provided in the section of this Article entitled “Marital Trust.” (vi) The Residual Portion shall be held as hereinafter provided in the section of this Article entitled “Residual Trust.” All property allocated to the marital portion was, under the terms of the trust agreement, placed into a segregated marital trust. The marital portion was then held, administered, and distributed pursuant to the terms of the marital trust. Thus, after the initial allocation of corpus between the marital and residual portions, the corpus of each portion was segregated from the other and increased or diminished without regard to the other. All net income from the marital trust was to be paid to the settlor’s wife for life, and the trustee was given a discretionary power to invade the corpus for the wife’s maintenance and support. The wife also possessed a special power of appointment by deed and a general power of appointment by will. The powers were exercisable over the entire corpus of the marital trust, but in default of the exercise of the powers, the corpus would be added to the residual portion and pass under the terms of the “residual trust.” The residual trust, to which the residual portion of the trust estate was also distributed, basically provided for the distribution of corpus upon the death of the settlor’s wife to the decedent’s heirs. Pursuant to the terms of the equalization clause, the trustee allocated $258,855.26 to the marital portion of the decedent’s trust. This amount thus became the corpus of the marital trust. The estate deducted the amount so allocated under section 2056(a). Respondent disallowed the deduction. There is no dispute over the amount allocated. The only issues are whether the surviving spouse’s interest is a terminable interest within the meaning of section 2056(b)(1), and whether the interest. otherwise qualifies for the marital deduction under section 2056(b)(5). The facts in this case are in all material respects identical to those in Estate of Smith v. Commissioner, 66 T.C. 415 (1976), affd. per curiam 565 F.2d 455 (7th Cir. 1977). There we held in" }, { "docid": "5481889", "title": "", "text": "yield, the date of maturity, and other relevant factors; and “(2) In the case of shares of stock, the company’s net worth, prospective earning power and dividend-paying capacity, and other relevant factors.” . I.R.C. § 2056(b)(1) provides in pertinent part: “(b) Limitation in the case of life estate or other terminable interests.— “(1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— “(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; and no deduction shall be allowed with respect to such interest (even if such deduction is not disallowed under subparagraphs (A) and (B))— “(C) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust.” . The after-acquired property exception to de-ductibility properly applies to bequests of cash with directions to the executor to purchase terminable interests such as annuities. See Treas.Reg. §§ 20.2056(b)-l(f), (g), Example (7). . See Hamilton Nat’i Bank v. United States, 353 F.2d 930, 931-32 (6th Cir. 1965) (“critical factor in applying the terminable interest rules is the possibility under state law of the failure of an interest rather than the actual failure”). . Section 2056(e) provides in pertinent part: “(e) Definition. — For purposes of this section, an interest in property shall be considered as passing from the decedent to any person if and only if— “(1) such interest is bequeathed or devised to such" }, { "docid": "11219016", "title": "", "text": "The availability of the year’s support to the surviving spouse under state law is not in doubt. The sole question presented by this appeal is whether, under Tennessee law, a widow’s interest in a statutory year’s support constitutes a “terminable interest” within the purview of Section 2056 (a), (b) (1) of the 1954 Internal Revenue Code, and consequently fails to qualify for the marital deduction. Section 2056(a), (b) (1), 1954 Internal Revenue Code provides: “(a) Allowance of marital deduction. — For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b), (e), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. “(b) Limitation in the case of life estate or other terminable interest. “(1) General Rule. Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest * * *„” Congress has indicated that, other than the enumerated exceptions to the terminable interest rule, Section 2056(a), (b) (1) was intended to be “all encompassing with respect to various kinds of contingencies and conditions”. Sen. Rept. No. 1013 (Part 2) 80th Congress, 2d Sess., Pg. 7. The Supreme Court in Jackson v. United States, 376 U.S. 503, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964), held that in order for the widow’s allowance to qualify for the marital deduction, and thus escape the terminable interest limitation, the widow’s interest in the year’s support must be indefeasible and unconditional as of the moment of the decedent’s death. The critical factor in applying the terminable interest rule is the possibility un der state law of the failure of an interest" }, { "docid": "3890410", "title": "", "text": "305-06, 332 et seq.) was enacted in order to give to estates of decedents in common law states the same favorable treatment, as nearly as might be effected, as that which is accorded to estates of. decedents in community-property states. The marital deduction may be allowed in an amount equal to the value of any interest in property which passes from the decedent to his surviving spouse to a maximum of 50 percentum of the value of the adjusted gross estate, subject to certain limitation. Subparagraph (A) of Section 812(e) (1) sets out the basic rule for the marital deduction which may be an amount equal to the value of any property which passed from the decedent to the surviving spouse to the extent that that interest is included in determining the value of the decedent’s gross estate. But subparagraph (B) qualifies the operation of the rule set out in subpara-graph (A) because it disallows the marital deduction where, by lapse of time, or on the occurrence of an event or contingency, or on the failuré of an event or contingency to take place, the interest going to the surviving spouse will terminate. If, however, subparagraph (B) be read literally it is obvious that a life estate to the surviving spouse, coupled with a general power of appointment, by deed or will with a devise over in the event of a failure to appoint, would fail to meet the test provided for the marital deduction by the subparagraph. Sub-paragraph (F) was enacted to provide for the marital deduction when there is such a transfer. Subparagraph (F) creates an exception to the terminable interest provisions of subparagraph (B). This appears from the legislative history of the statute. The Report of the Senate Committee on Finance, id. supra, at p. 342 states: “These provisions have the effect of allowing a marital deduction with respect to the value of property transferred in trust by or at the direction of the decedent where the surviving spouse, by reason of her right to the income and a power of appointment, is the virtual owner of" }, { "docid": "14655765", "title": "", "text": "will be effective only in the event that my wife, Kathleen M. Allen, chooses not to make the agreement Which I suggest and request, or is unable to do so. . Internal Revenue Code of 1954, § 2056 (b) (1) provides in pertinent part: Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse * * *. . The ground on which we rest here was not urged below but was briefed and argued in this Court. But, if right on any theory, the Commissioner’s determination should be sustained. Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224 (1937). See also Towers v. Commissioner of Internal Revenue, 247 F.2d 233 (2d Cir. 1957), cert. denied 355 U.S. 914, 78 S.Ct. 343, 2 L.Ed.2d 274 (1958). . See note 5, supra. . It has been suggested that since Kathleen would have taken under either Part I or Part II of Allen’s will, at least the lesser amount which she stood to inherit under Part II should qualify for the marital deduction, but, the fact is that Kathleen chose to take under Part I and viewed at the moment of Allen’s death that interest was terminable in its entirety. . Treas.Reg. § 20-2056(e)-2(c) provides: This paragraph contains rules applicable if the surviving spouse may elect between a property interest offered to her under the decedent’s will or other instrument and a" }, { "docid": "3458622", "title": "", "text": "equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the decedent’s gross estate. Subparagraph (B) of § 812(e) (1) then restricts the operation of the basic rule in subparagraph (A) by disallowing a marital deduction where, upon the lapse of time, or upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, the interest passing to the surviving spouse will terminate. Under subparagraph (B), as written, one of the most usual common law testamentary transfers would not have qualified for the marital deduction, i. e., a life estate to the surviving spouse coupled with a general power of appointment by deed or will and with a devise over in the event of a failure to appoint. Subparagraph (F) of § 812(e) (1) was designed to provide a marital deduction for such a transfer; in other words, subparagraph (F) provides an exception to the terminable interest provisions of sub-paragraph (B). In explanation, the Report of the Senate committee stated (1948-1 Cum.Bull. 342): “These provisions have the effect of allowing a marital deduction with respect to the value of property transferred in trust by or at the direction of the decedent where the surviving spouse, by reason of her right to the income and a power of appointment, is the virtual owner of the property. This provision is designed to allow the marital deduction for such cases where the value of the property over which the surviving spouse has a power of appointment will (if not consumed) be subject to either the estate tax or the gift tax in the case of such surviving spouse.” Under § 1 of paragraph 3 of the will of Frank E. Tingley, a trust was created of a stated portion or share of the residual estate in favor of the surviving spouse, Mary Elizabeth Tingley. The trustee was directed to pay over to her, as nearly as possible in equal" }, { "docid": "3890423", "title": "", "text": "one-half of it is terminable, assuming that some portion of it will remain unconsumed. It follows that the provisions of Section 812(e) (1) (B) apply only to that portion of the residuary estate which is terminable, the part going to the children. The value of the remaining half which will go to Mrs. Ellis’ estate constitutes a valid marital deduction. The decision of the Tax Court will be vacated and the cause remanded to the end that the amount, if any, due to the taxpayers may be determined by the Tax Court in view of our decision. . Added by 62 Stat. 118 (1948), now Int.Rev.Code of 1954, Section 2056(b) (5), 26 U.S. C.A. § 2056(b) (5). . Sec. 812. Net Estate. “For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate— * * * * * “(e) Bequest, etc., to surviving spouse “(1) Allowance of marital deduction “(A) In general. An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. “(B) Life estate or other terminable interest. Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest— “(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;" }, { "docid": "1963079", "title": "", "text": "to do with creating a terminable interest, and since the Commissioner, in effect, concedes that this is so, we conclude that petitioner is entitled to a marital deduction as to the personalty transferred under the residuary clause of the will of Francis S. Tilyou. . Judge Quealy’s opinion is reported at 56 T.C. 1362 (1971). . This section of the Internal Revenue Code was obviously drafted before Congress became attuned to the subtleties of subconscious male chauvinist attitudes. Actuavially, it is, probably slightly more correct to assume that the wife, rather than the husband, will be the surviving spouse. On the other hand, it is clear that, even though the Code refers to “his surviving spouse”, the marital deduction applies as well when the husband seeks “surviving spouse” status under this section. 1 U.S.C. § 1. See e. g., Calif. Trust Co. v. Riddell, 136 F.Supp. 7 (S.D.Cal.1955). . § 2056(b) Limitation in the case of life estate or other terminable interest. (1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in mon ey or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse) ; and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; and no deduction shall be allowed with the respect to such interest (even if such deduction is not disallowed under sub-paragraphs (A) and (B))— (O) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust. For purposes" }, { "docid": "14183728", "title": "", "text": "MATTHES, Circuit Judge. The basic issue in this case is whether Maude H. Lamar (appellee), widow of Frederick C. Lamar, deceased, is entitled to the “marital deduction” of 50% of the value of the adjusted gross estate of Mr. Lamar under the provisions of § 2056 of the Internal Revenue Code of 1954. More precisely, was the interest in the estate devised to the widow by decedent in his last will and testament a terminable one within the meaning of the statute, so as to disqualify her from claiming the “marital deduction,” — as contended by the Director, or, did the devised property vest absolutely in the widow immediately upon Lamar’s death, free of any contingency — as urged by appellee and as found by the trial court ? Lamar v. Bookwalter, W.D.Mo., 213 F.Supp. 860 (1962). Section 2056 of the Internal Revenue Code of 1954, the statutory authority for the “marital deduction,” also provides for a limitation in the case of a life estate or other terminable interest. Pertinent hereto is that portion of the limitation which reads: “(b) Limitation in the case of life estate or other terminable interest.— “(1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest- — • “(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse The facts were agreed upon and in summary are as follows: Lamar, the testator, a resident of Kansas City, Missouri, died on January 1, 1958," }, { "docid": "14655760", "title": "", "text": "regardless of what subsequent events came to pass. Thus, a reviewing court must focus on the moment of the testator’s death to determine the nature of a marital gift for estate tax purposes, unless the Internal Revenue Code expressly provides to the contrary, as in section 2056(b) (3). Jackson v. United States, supra; United States v. Edmonson, 331 F.2d 676 (5th Cir. 1964); Bookwalter v. Lamar, 323 F.2d 664 (8th Cir.), cert. denied, 376 U.S. 969, 84 S.Ct. 1135,12 L.Ed. 2d 84 (1963); United States v. Mappes, 318 F.2d 508 (10th Cir. 1963); United States v. Quivey, 292 F.2d 252 (8th Cir. 1961); Cunha’s Estate v. Commissioner of Internal Revenue, 279 F.2d 292 (9th Cir.), cert. denied, 364 U.S. 942, 81 S.Ct. 460, 5 L.Ed.2d 373 (1960); Starrett v. Commissioner of Internal Revenue, 223 F.2d 163 (1st Cir. 1955). Ill Applying these established guidelines to Allen’s marital bequest, it is apparent that the devise runs afoul of the terminable interest rule. Viewed at the moment of his death, the bequest to Allen’s spouse under Part I of his will was subject to at least two contingencies, each of which could have caused it to fail: (1) Kathleen might not have elected to take under Part I at all; or (2) even if she had executed the agreement to devise all of her property to Allen’s four children equally, there remained the need for the Surrogate’s approval and the possibility that he might not give it. If the de vise under Part I of the will failed because of these contingencies, Alice Edna Stuhmer, Allen’s daughter by his first wife, would have enjoyed or possessed part of her father’s property upon the termination of her stepmother’s interest. As previously noted, in Part II of his will, Allen bequeathed to Alice an interest in the residue of his estate contingent upon Kathleen’s failure to elect to take under Part I. Thus, at the crucial moment of Allen’s death, the bequest to his spouse, could not qualify for the marital deduction because all three characteristics of a terminable interest were present. The interest" }, { "docid": "16913959", "title": "", "text": "a Court-reviewed opinion that the interest passing under a trust provision almost identical to the one quoted above was properly deducted under section 2056(a). Respondent had determined that the interest passing under the trust was a terminable interest, nondeductible as such under section 2056(b)(1). At trial he argued that because the trustee could not determine the amount to be allocated to the marital portion of the trust estate until 1 year after the decedent’s death, the interest passing to the surviving spouse was conditional or contingent. That is also respondent’s first contention here. For the reasons stated in Estate of Smith, we reject that contention again. Respondent’s second reason for disallowing the deduction here is that the interest passing to the surviving spouse fails to meet the requirements of section 2056(b)(5). This contention was neither raised nor considered in Estate of Smith v. Commissioner, supra at 427. Section 2056(b)(5) provides an exception to the terminable interest rule of section 2056(b)(1) for certain life estates with a general power of appointment in the surviving spouse. Normally, a life estate is an interest that will terminate or fail upon the occurrence of an event, viz, the death of the life tenant. If the decedent has also given an interest in the property to another, and if upon the termination or failure of the spouse’s interest the other person may possess or enjoy the property by way of his interest, then the spouse’s interest will be nondeductible under section 2056(b)(1). See R. Stephens, G. Maxfield & S. Lind, Federal Estate and Gift Taxation, par. 5.06[8][a] (4th ed. 1978). If, however, the spouse also receives a general power of appointment that meets the requirements of section 2056(b)(5), the interest will not be considered terminable even though it otherwise comes within the terms of section 2056(b)(1). This is designed to allow the marital deduction where the value of the property over which the surviving spouse has a power of appointment will (if not consumed) be subject to either the estate tax or the gift tax in the case of such surviving spouse. S. Rept. 1013," }, { "docid": "3458618", "title": "", "text": "MAGRUDER, Chief Judge. Frank E. Tingley, a resident of Rhode Island, died October 3, 1948. In the estate tax return filed by his executor, a so-called “marital deduction” under § 812 (e) (1) (F) of the Internal Revenue Code, 26 U.S.C.A. was claimed in the full amount of the value of certain property which passed to the surviving spouse pursuant to paragraph 3, § 1, of Tingley’s will, quoted hereinafter. The Commissioner of Internal Revenue ruled that such marital deduction was not allowable, and determined a deficiency accordingly. In the Tax Court of the United States this ruling of the Commissioner was upheld. The executor then duly petitioned this court for review of the Tax Court decision. The elaborate provisions for this marital deduction were inserted in the Internal Revenue Code by § 361 of the Revenue Act of 1948/62 Stát. 117, which added a new subsection (e) to § 812 of the Code, reading in part as follows: “(e) Bequests, etc., to surviving spouse “(1) Allowance of marital dedúc- ' tion “(A) In general. An amount equal to the valué of any interest in property which passes or has passed from the decedent tó his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. “(B) Life estate or other terminable interest. Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest— “(i) if an interest in such property passes or has passed (for less ■ than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); * * ****** “(F) Trust with power of appointment in surviving spouse. In the case of an interest in property passing from the decedent in trust, if under the terms of the trust his surviving spouse is entitled for" }, { "docid": "10896153", "title": "", "text": "15, 1977, in Riverside County, California. A judgment for final distribution of the estate was entered on January 8, 1979, in that county. Mr. Harmon survived the decedent’s death and the entry of the judgment of final distribution. The petitioner claimed a marital deduction of $117,175 on its estate tax return. In his notice of deficiency, the Commissioner disallowed $116,220 of the claimed marital deduction because he determined that paragraph \"Third” of the decedent’s will passed a nondeductible, terminable interest in the personal property and the condominium to her husband. OPINION The issue for decision is whether the gift of the personalty and condominium to Mr. Harmon subject to his surviving distribution of the estate of the decedent was a terminable interest within the meaning of section 2056(b) for which no marital deduction is allowable. Section 2056(a) permits a deduction equal to the value of any interest in property which passes from the decedent to her surviving spouse to the extent that such interest is included in determining the value of the decedent’s gross estate. However, section 2056(b) sets forth an exception for life estates and other terminable interests where the deduction will not be allowed: SEC. 2056(b). Limitation in the Case of Life Estate or Other Terminable Interest.— (1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; Section 2056(b)(3) sets forth guidelines whereby certain conditions of" }, { "docid": "21338359", "title": "", "text": "Court erred deciding that the interest devised by the testator to his wife in the two residences qualified for the marital deduction. Reversed . “§ S12. Net estate “For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate— ******* “(e) (As added by Sec. 361(a) of the Revenue Act of 1948, c. 168, 62 Stat. 110) Bequests, Etc., to Surviving Spouse.— “(1) Allowance of marital deduction. “(A) In general. An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining value of the gross estate. “(B) Life estate or other terminable interest. Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest — - “(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such surviving spouse); and “(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; and no deduction shall he allowed with respect to such interest (even if such deduction is not disallowed under clauses (i) and (ii)— “(iii) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust. For the purposes of this subparagraph, an interest shall not be considered as an interest which will terminate or fail merely because it is the ownership of a bond," }, { "docid": "3568209", "title": "", "text": "234 F. Supp. 897 (M.D. N.C.); cf. Estate of Green v. United States, 441 F. 2d 303. Moreover, in Jackson the order granting the allowance was issued 14 months after decedent’s death, and it provided that a monthly amount be paid to the widow beginning from the date of decedent’s death and continuing for 24 months. Thus, as of the date of the order a lump-sum payment had already accrued to the widow, and the remainder of the allowance was to be paid in monthly installments. The Supreme Court did not allow any part of the allowance to qualify for the marital deduction; no distinction was drawn between that portion which was a lump sum as of the time of the order and that portion which was a monthly payment. Accordingly, in order to give effect to possible additional deductions for attorney’s fees, Decision will be entered under Rules 50 and 51. SEC. 2056. bequests, ETC., TO SURVIVING SPOUSE. (a) Allowance of Marital Deduction. — For purposes of the tax Imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b), (e), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such Interest is included in determining the value of the gross estate. (b) Limitation in the Case of Life Estate or Other Terminable Interest.— (1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse) ; and" }, { "docid": "16913958", "title": "", "text": "exercise of the powers, the corpus would be added to the residual portion and pass under the terms of the “residual trust.” The residual trust, to which the residual portion of the trust estate was also distributed, basically provided for the distribution of corpus upon the death of the settlor’s wife to the decedent’s heirs. Pursuant to the terms of the equalization clause, the trustee allocated $258,855.26 to the marital portion of the decedent’s trust. This amount thus became the corpus of the marital trust. The estate deducted the amount so allocated under section 2056(a). Respondent disallowed the deduction. There is no dispute over the amount allocated. The only issues are whether the surviving spouse’s interest is a terminable interest within the meaning of section 2056(b)(1), and whether the interest. otherwise qualifies for the marital deduction under section 2056(b)(5). The facts in this case are in all material respects identical to those in Estate of Smith v. Commissioner, 66 T.C. 415 (1976), affd. per curiam 565 F.2d 455 (7th Cir. 1977). There we held in a Court-reviewed opinion that the interest passing under a trust provision almost identical to the one quoted above was properly deducted under section 2056(a). Respondent had determined that the interest passing under the trust was a terminable interest, nondeductible as such under section 2056(b)(1). At trial he argued that because the trustee could not determine the amount to be allocated to the marital portion of the trust estate until 1 year after the decedent’s death, the interest passing to the surviving spouse was conditional or contingent. That is also respondent’s first contention here. For the reasons stated in Estate of Smith, we reject that contention again. Respondent’s second reason for disallowing the deduction here is that the interest passing to the surviving spouse fails to meet the requirements of section 2056(b)(5). This contention was neither raised nor considered in Estate of Smith v. Commissioner, supra at 427. Section 2056(b)(5) provides an exception to the terminable interest rule of section 2056(b)(1) for certain life estates with a general power of appointment in the surviving spouse. Normally," }, { "docid": "3568202", "title": "", "text": "the testamentary trust, or for the $50,000 widow’s allowance which she was granted. The Commissioner also increased the gross estate by $1,500, including therein the fair market value of the household furnishings of the decedent. The only issue to be decided is whether the widow’s allowance of $50,000 qualifies for the marital deduction under section 2056, I.R.C. 1954, thereby increasing the amount of that deduction to $158,491.83. Petitioner makes no argument with respect to the other adjustments in the estate tax return made by the Commissioner in his deficiency notice. Section 2056(a), I.R.C. 1954, provides for a deduction from the value of the gross estate of an amount equal to the value of any interest in property which passes, or has passed, from the decedent to the surviving spouse. There are, however, certain restrictions and limitations on this deduction. Thus, section 2056 (b) provides that no deduction shall be allowed for a “terminable interest” passing from the decedent to the surviving spouse. “In general, an interest is regarded as ‘terminable’ and is to be disqualified for deduction where at the time of decedent’s death (1) it will terminate or fail on the lapse of time or on the occurrence or nonoccurrence of an event or contingency; (2) an interest in the same property passes or has passed from the decedent to someone other than the surviving spouse for less than an adequate and full consideration in money or money’s worth; and (3) such other person will be able to possess or enjoy any part of such property upon the termination or failure of the surviving spouse’s interest.” Estate of Virginia Loren Ray, 54 T.C. 1170, 1173. In our judgment the widow’s allowance of $50,000 granted by the Massa chusetts court is a “terminable interest” within the meaning of these provisions. The issue as to the point of time from which to determine whether a widow’s allowance is a “terminable interest” within the meaning of section 2056 (b) was settled by the Supreme Court in Jackson v. United States, 376 U.S. 503. It is now firmly established that the date of" }, { "docid": "9703317", "title": "", "text": "in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. . See Northeastern Pennsylvania Nat’I Bank & Trust Co. v. United States, 387 U.S. 213, 219, 87 S.Ct. 1573, 1577, 18 L.Ed.2d 726, 731 (1967); Jackson v. United States, 376 U.S. 503, 510, 84 S.Ct. 869, 873, 11 L.Ed.2d 871, 876 (1964); United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 255, 11 L.Ed.2d 195, 203 (1964); Del Mar v. United States, 129 U.S.App.D.C. 51, 53, 390 F.2d 466, 468, cert. denied, 393 U.S. 828, 89 S.Ct. 92, 21 L.Ed.2d 99 (1968). “[T]he underlying purpose [of the deduction] was to equalize the incidence of the estate tax in community property and common-law jurisdictions. Under a community property system a surviving spouse takes outright ownership of half of the community property, which therefore is not included in the deceased spouse’s estate. The marital deduction allows transfer of up to one-half of noncommunity property to the surviving spouse free of the estate tax.” Northeastern Pennsylvania Nat’I Bank & Trust Co. v. United States, supra, 387 U.S. at 219, 87 S.Ct. at 1576-1577, 18 L.Ed.2d at 731. . See Northeastern Pennsylvania Nat’I Bank & Trust Co. v. United States, supra note 9, 387 U.S. at 219-222, 87 S.Ct. at 1577-1578, 18 L.Ed.2d at 731-732. . 26 U.S.C. § 2056(b)(1) (1971) provides in relevant part: General rule—Where, on the lapse of time, on the occurrence of an event or contingen cy, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs" }, { "docid": "14655759", "title": "", "text": "the three characteristics found in sections 2056(b) (1) (A) and (B). First, it must be an interest in property which will terminate upon the occurrence or non-occurrence of an event or upon the lapse of time. Second, another interest in the same property must pass or have passed to someone other than the spouse from the decedent for less than an adequate consideration. And third, such other person must be able to possess or enjoy a part of such property upon the termination of the spouse’s interest. With certain exceptions not relevant to this case, the interest bequeathed to a spouse qualifies for the marital deduction unless all three of these characteristics are present. It is now well settled that the determination of whether an interest is terminable is to be judged in the light of events at the precise moment of the decedent’s death. If, viewed at the time of the death, the interest bequeathed to the spouse might terminate under some circumstances, that interest is terminable for the purposes of section 2056(b) (1) regardless of what subsequent events came to pass. Thus, a reviewing court must focus on the moment of the testator’s death to determine the nature of a marital gift for estate tax purposes, unless the Internal Revenue Code expressly provides to the contrary, as in section 2056(b) (3). Jackson v. United States, supra; United States v. Edmonson, 331 F.2d 676 (5th Cir. 1964); Bookwalter v. Lamar, 323 F.2d 664 (8th Cir.), cert. denied, 376 U.S. 969, 84 S.Ct. 1135,12 L.Ed. 2d 84 (1963); United States v. Mappes, 318 F.2d 508 (10th Cir. 1963); United States v. Quivey, 292 F.2d 252 (8th Cir. 1961); Cunha’s Estate v. Commissioner of Internal Revenue, 279 F.2d 292 (9th Cir.), cert. denied, 364 U.S. 942, 81 S.Ct. 460, 5 L.Ed.2d 373 (1960); Starrett v. Commissioner of Internal Revenue, 223 F.2d 163 (1st Cir. 1955). Ill Applying these established guidelines to Allen’s marital bequest, it is apparent that the devise runs afoul of the terminable interest rule. Viewed at the moment of his death, the bequest to Allen’s spouse under Part" }, { "docid": "4387792", "title": "", "text": "the right, as we see it, was subject to termination in the event of her death or remarriage and so was a terminable,interest in property passing to the widow from her husband. The allowance was thus an interest for which, in the words of section 812 (e) (1), “no deduction shall be allowed.” We uphold the Commissioner’s action. Decision will he entered for the respondent. SBC. 812. NET ESTATE. For the purpose of the tax the value of the net estate shall be determined, In the case of a citizen or resident of the United States by deducting from the value of a gross estate— ******* (e) Bequests, Etc., to Surviving Spouse.— (1) Allowance op marital deduction.— (A) In General. — An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. (B) Life Estate' or Other Terminable Interest. — Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, sueh interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest— (i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse) ; and (ii) if by reason' of such passing sueh person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; and no deduction shall be allowed with respect to such interest (even if sueh deduction is not disallowed under clauses (i) and (ii))— (iii) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust." } ]

[ { "docid": "22336158", "title": "", "text": "general rule that an indictment for an offence purely statutory is sufficient if it pursues substantially the words of the statute, is subject to the qualification, fundamental in the law of criminal procedure, “ that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence and plead the judgment as a bar to any subsequent prosecution for the same offence.” United States v. Simmons, 96 U. S. 360, 362; United States v. Hess, 124 U. S. 483, 488. As said in United States v. Carll, 105 U. S. 611, 612, it is not sufficient to set forth the offence in the words of the statute, “ unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” The want of care in framing the first count is further shown by the fact that, although voting and attempting to vote, knowingly, in the name of another, for Eepresentative in Congress, may be distinct offences, under the statute, the indictment charges that the defendant did knowinglypersonate and vote and attempt to vote” in the name of another person. If the attempt to so v'ote was immediately followed by voting, then the allegation that the accused attempted to vote was unnecessary: The first count leaves it in doubt whether it was intended to .charge two distinct offences, or only the offence of voting in the name of another person. This defect alone might not have been sufficient, after verdict, as ground for arresting the judgment on that count. But it is referred to as supporting or illustrating the rule that enjoins such certainty in an indictment as will inform the accused of the precise nature of the charge against him. In respect to the third count of the indictment, but little need be said. It is clearly sufficient, for it charges that “ at said election ” the defendant voted more than once for Representative in Congress. Such" } ]

[ { "docid": "14706876", "title": "", "text": "S.Ct. 303, 66 L.Ed. 619; United States v. Miller, 2 Cir., 246 F.2d 486, 488-489, certiorari denied 1957, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261. . Cf. United States v. Bitz, 2 Cir., 1960, 282 F.2d 46. . Where a violation of a statute is charged, an indictment in the language of the statute is ordinarily sufficient, an exception being where the statute includes by implication an essential element of the offense. See United States v. Carll, 1881, 105 U.S. 611, 26 L.Ed. 1135; United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491; United States v. Williams, 5 Cir., 203 F.2d 572, certiorari denied 1953, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347; United States v. Achtner, 2 Cir., 1944, 144 F.2d 49. However, where the statute is couched in general terms, the indictment must particularize the offense sufficiently to inform the defendant of the accusation which he must meet. United States v. Hess, 1888, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516; United States v. Simmons, 1877, 96 U.S. 360, 24 L.Ed. 819. . See United States v. Debrow, 1953, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92; Singer v. United States, 3 Cir., 1932, 58 F.2d 74 (per curiam); Wilson v. United States, 2 Cir., 275 F. 307, certiorari denied 1921, 257 U.S. 649, 42 S. Ct. 57, 66 L.Ed. 416; United States v. Peelle, D.C.E.D.N.Y.1954, 122 F.Supp. 923. Cf. United States v. Shindler, D.C. S.D.N.Y.1952, 13 F.R.D. 292. . 1 CCH 1960 Fed.Sec.L.Rep. par. 7123. . Boyce Motor Lines v. United States, 1952, 342 U.S. 337, 343, 72 S.Ct. 329, 96 L.Ed. 367; Universal Milk Bottle Service v. United States, 6 Cir., 1951, 188 F.2d 959, 962-963 (per curiam). . The matter of materiality may ultimately resolve itself into a question of law or one of fact, or a mixed question of law and fact. Cf. United States v. Shindler, D.C.S.D.N.Y.1959, 173 F.Supp. 393, 395; United States v. Stark, D.C.D.Md.1955, 131 F.Supp. 190, 208. . See Edwards v. United States, 1941, 312 U.S. 473, 483, 61 S.Ct. 669, 85 L.Ed." }, { "docid": "2926396", "title": "", "text": "96 L.Ed. 288]. Cf. United States v. Petrillo, 332 U.S. 1, 10-11 [67 S.Ct. 1538, 91 L.Ed. 1877].” Section 7201 of the Internal Revenue Code of 1954 proclaims that any person who willfully attempts to evade or defeat any tax imposed by Title 26 in any manner shall be guilty of a felony. In Sansone v. United States, 380 U.S. 343, p. 351, 85 S.Ct. 1004, p. 1010, 13 L.Ed.2d 822 (March 29,* 1965), the Court states: ■“[T]he elements of § 7201 are willfulness; the existence of a tax deficiency, Lawn v. United States, 355 U.S. 339, 361 [78 S.Ct. 311, 2 L.Ed.2d 321]; Spies v. United States [317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)], supra, 317 U.S. at 496 [63 S.Ct. at 366]; and an affirmative act constituting an evasion or attempted evasion of the tax, Spies v. United States, supra.” In its introductory part, Count II names the Company as being a corporation with its business office at Exeter, Pa.; it identifies Dougherty as having been president of the Company during the conspiracy; Fabrizio as secretary and treasurer; Sciandra as a stockholder; and Lippi as president of District 1, United Mine Workers of America. It then goes on to charge that these four individuals did unlawfully, knowingly and willfully conspire together and with other persons unknown to commit certain offenses against the United States, to wit: “(a) The offenses of wilful attempts to evade and defeat, corporate income taxes of Knox Coal Company for the fiscal year ended June 30, 1957, a felony, in violation of Section 7201 of Title 26 of the United States Code.” This quoted portion does not incorporate by reference or refer to any other part of the count or indictment. Of course, unless the charging part of a conspiracy count specifically refers to or incorporates by reference allegations which appear under the heading of the overt acts, resort to those allegations may not be had to supply the insufficiency in the charging language itself. Joplin Mercantile Co. v. United States, 236 U.S. 531, 535, 35 S.Ct. 291, 59 L.Ed. 705" }, { "docid": "8173938", "title": "", "text": "operate a motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this State.” There is no indication from this statutory language that, as the trial court held and instructed the jury, an additional element must be proven for conviction: actual commission of the violation of state law. for which the defendant fled arrest. Once prior violation of a specific state statute became an element of the offense by virtue of the trial court ruling, Goodloe was entitled not only to notice of that general fact, but also to specific notice of what law he was alleged to have violated. See Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899); United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed. 588 (1875). As the trial court’s exclusion of evidence pertaining to the suspended license charge illustrated, whether Goodloe had violated a specific state statute was a crucial factual determination. In such a situation, an information which describes the offense in generic terms fails to adequately inform of the specific offense charged so as to allow preparation of a defense. Russell v. United States, 369 U.S. 749, 764-66, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888). Thus the information, while couched in the language of the statute, nevertheless failed to adequately describe the offense charged because it did not allege an essential substantive element. See United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882); see also Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). If a defendant is actually notified of the charge, due process notice requirements may be met, even if the information is deficient. See United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976); cf. United States v. Cartano, 534 F.2d 788, 791 (8th Cir.). cert. denied, 429 U.S. 843, 97 S.Ct. 121, 50 L.Ed.2d 113 (1976). Goodloe was notified by complaint and arrest warrant of the prosecution’s theory that he fled arrest for" }, { "docid": "10978206", "title": "", "text": "if it contains the elements of the crime charged and fairly informs the defendant of the charge against which he must defend. United States v. Serino, 835 F.2d 924, 929 (1st Cir.1987). The Serino court also noted that an indictment is generally sufficient if it sets forth the offense in the words of the statute itself as long as the words set forth all of the elements without uncertainty or ambiguity. The indictment in this case charged: On or about the 15th day of Apr 11, 1981, in the District of Massachusetts, John J. Hogan a resident of North Attleboro, Massachusetts, did willfully attempt to evade or defeat the payment of a large part of the income tax due and owing by him to the United States of America for the calendar year 1980, in the amount of $4,850.91, by filing fraudulent Withholding Allowance Certificates with his employer claiming to be exempt from income tax withholding. In violation of Title 26, United States Code, Section 7201. The second, third, and fourth counts charged the same language for the years 1982, 1983, and 1984. Title 26 U.S.C. § 7201 reads: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ... or imprisoned not more than 5 years, or both, together with the costs of prosecution. Filing fraudulent W-4 forms is a misdemeanor under Title 26 U.S.C. § 7205. But not every fraudulent filing of a W-4 need be done as a willful attempt to evade or defeat taxes. In Sansone v. United States, 380 U.S. 343, 352, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965), the Court addressed this question in the context of a lesser included offense. Section 7207 requires the willful filing of a document known to be false or fraudulent in any material manner. The elements here involved are willfulness and the commission of the prohibited act. Section 7207 does" }, { "docid": "22624826", "title": "", "text": "the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars.’ ” United States v. Cruikshank, 92 U. S. 542, 558. An indictment not framed to apprise the defendant “with reasonable certainty, of the nature of the accusation against him ... is defective, although it may follow the language of the statute.” United States v. Simmons, 96 U. S. 360, 362. “In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; . . .” United States v. Carll, 105 U. S. 611, 612. “Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” United States v. Hess, 124 U. S. 483, 487. See also Pettibone v. United States, 148 U. S. 197, 202-204; Blitz v. United States, 153 U. S. 308, 315; Keck v. United States, 172 U. S. 434, 437; Morissette v. United States, 342 U. S. 246, 270, n. 30. Cf. United States v. Petrillo, 332 U. S. 1, 10-11. That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7 (c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions. The vice which inheres in the failure of an indictment under 2 U. S. C. § 192 to identify the subject under inquiry is thus the violation of the basic principle “that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, . . .” United States v. Simmons, supra, at 362. A cryptic form of indictment in cases" }, { "docid": "14706875", "title": "", "text": "the extent of striking “among other things” appearing in the various counts of the indictment; in all other respects they are denied. . 15 U.S.C.A. § 77x. . “Associate,” as used in the Regulations, “means (1) any corporation * * * of which such person is an officer * * * or is, directly or indirectly, the beneficial owner of 10 percent or more of any. class of equity securities * * * 17 C.F.R. § 280.405 (b-1) (Supp.1960). . Such information is required to be sot forth in the Registration Statement. Form S-1, Item 20, 1 CCH 1960 Fed. Sec.L.Rep. par. 7123. . United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92; Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Varlack, 2 Cir., 1955, 225 F.2d 665, 670. . United States v. Cruikshank, 1875, 92 U.S. 542, 557-559, 23 L.Ed. 588. See United States v. Debrow, supra note 4; United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; United States v. Miller, 2 Cir., 246 F.2d 486, 488-489, certiorari denied 1957, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261. . Cf. United States v. Bitz, 2 Cir., 1960, 282 F.2d 46. . Where a violation of a statute is charged, an indictment in the language of the statute is ordinarily sufficient, an exception being where the statute includes by implication an essential element of the offense. See United States v. Carll, 1881, 105 U.S. 611, 26 L.Ed. 1135; United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491; United States v. Williams, 5 Cir., 203 F.2d 572, certiorari denied 1953, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347; United States v. Achtner, 2 Cir., 1944, 144 F.2d 49. However, where the statute is couched in general terms, the indictment must particularize the offense sufficiently to inform the defendant of the accusation which he must meet. United States v. Hess, 1888, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516; United States v. Simmons, 1877, 96 U.S." }, { "docid": "10978207", "title": "", "text": "language for the years 1982, 1983, and 1984. Title 26 U.S.C. § 7201 reads: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ... or imprisoned not more than 5 years, or both, together with the costs of prosecution. Filing fraudulent W-4 forms is a misdemeanor under Title 26 U.S.C. § 7205. But not every fraudulent filing of a W-4 need be done as a willful attempt to evade or defeat taxes. In Sansone v. United States, 380 U.S. 343, 352, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965), the Court addressed this question in the context of a lesser included offense. Section 7207 requires the willful filing of a document known to be false or fraudulent in any material manner. The elements here involved are willfulness and the commission of the prohibited act. Section 7207 does not, however, require that the act be done as an attempt to evade or defeat taxes. Conduct could therefore violate § 7207 without violating § 7201 where the false statement, though material, does not constitute an attempt to evade or defeat taxation because it does not have the requisite effect of reducing the stated tax liability. Id. Therefore the indictment not only charged the attempt to evade or defeat taxes but also the commission of the affirmative act of filing fraudulent statements. The appellant could have violated section 7205, a misdemeanor, by merely willfully filing the fraudulent W-4s without attempting to evade the payment of taxes. The government, however, in the indictment asserted the element not required for a conviction under section 7205 and adequately notified Hogan of the felony against which he had to defend. TAX ASSESSMENT Section 7201 defines two distinct crimes: (1) the willful attempt to evade or defeat the “assessment” of a tax, and (2) the willful attempt to evade or defeat the “payment” of a tax. See Sansone, 380 U.S." }, { "docid": "8173937", "title": "", "text": "the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states. See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). An information in the words of the statute creating the offense will generally suffice, Hamling v. United States, 418 U.S. at 117, 94 S.Ct. 2887, but the requirement of fair notice is only met if “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); see also State v. Abraham, 189 Neb. 728, 729-30, 205 N.W.2d 342, 343-44 (1973). The indictment upon which Goodloe was tried charged that he did, in the words of the statute, “unlawfully operate a motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this State.” There is no indication from this statutory language that, as the trial court held and instructed the jury, an additional element must be proven for conviction: actual commission of the violation of state law. for which the defendant fled arrest. Once prior violation of a specific state statute became an element of the offense by virtue of the trial court ruling, Goodloe was entitled not only to notice of that general fact, but also to specific notice of what law he was alleged to have violated. See Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899); United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed. 588 (1875). As the trial court’s exclusion of evidence pertaining to the suspended license charge illustrated, whether Goodloe had violated a specific state statute was a crucial factual determination. In such a situation, an information which describes the offense in generic" }, { "docid": "23183687", "title": "", "text": "no further force and effect.” Citing Evans v. United States, 153 U. S. 584, 14 S.Ct. 934, 38 L.Ed. 830. Citing United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L. Ed. 516. In Ledbetter v. United States, 170 U. S. 606, at pages 609, 610, 18 S.Ct. 774, at page 775, 42 L.Ed. 1162, the court said: “We have no disposition to quali fy what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged. United States v. Cook, 17 Wall. 168, 174, 21 L.Ed. 538; United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588; United States v. Carll, 105 U. S. 611, 26 L.Ed. 1135; United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819; United States v. Hess, 124 U.S. 483, 31 L. Ed. 516; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Evans v. United States, 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830.” Second Revised Ration Order No. 3 was issued on November 14, 1944, consisted of twenty-six pages, and was amended fifty-five times up to and including December 21, 1945. General Ration Order No. 8 Was issued on March 25, 1943, and amended twelve times up to and including June 30,1945. “Sec. 17.11. Unlawful Use of Possession. No person shall at any time either use or have in his possession or under his control or take delivery of any sugar, certificates, stamps or War Ration Books, where such possession, control, or acquisition is in violation of this order.”" }, { "docid": "4517648", "title": "", "text": "indictment shall charge the of-fence in the same generic terms as in the definition; but it must state the species — , it must descend to particulars.” Id. at 765, 82 S.Ct. 1038 (quoting United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875)). Moreover, “[a]n indictment not framed to apprise the defendant with reasonable certainty, of the nature of the accusation against him ... is defective, although it may follow the language of the statute.” Id. (quoting United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819 (1877)) (ellipses in original). Where, as here, the indictment is statutorily based, “it is not sufficient to set forth the offence in the words of the statute, unless those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881)). Finally, although the general language of a statute may be used in the indictment, “it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Id. (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888)). Otherwise, the defendant must go to trial with the “chief issue undefined.” Id. at 766, 82 S.Ct. 1038; see also United States v. Lamont, 236 F.2d 312, 317 (2d Cir.1956) (criminal pleading “should avoid ... a formalism of generality”). Lack of specificity in an indictment further “enables [a defendant’s] conviction to rest on one point and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof with conjecture and surmise.” Russell, 369 U.S. at 766, 82 S.Ct. 1038. The Russell Court ultimately held that the omission from the indictment of the facts constituting the “core of criminality” of the statute was both prejudicial and violative of the defendant’s constitutional rights. The Court reasoned that" }, { "docid": "2595777", "title": "", "text": "the indictment shall charge the of-fence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars.’ ” It then continues: An indictment not framed to apprise the defendant “with reasonable certainty, of the nature of the accusation against him ... is defective, although it may follow the language of the statute.” United States v. Simmons, 96 U.S. 360, 362 [, 24 L.Ed. 819], “In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; ..” United States v. Carll, 105 U.S. 611, 612 [, 26 L.Ed. 1135], “Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” United States v. Hess, 124 U.S. 483, 487 [, 8 S.Ct. 571, 31 L.Ed. 516], See also Pettibone v. United States, 148 U.S. 197, 202-204 [, 13 S.Ct. 542, 545, 37 L.Ed. 419]; Blitz v. United States, 153 U.S. 308, 315 [, 14 S.Ct. 924, 927, 38 L.Ed. 725]; Keck v. United States, 172 U.S. 434, 437 [, 19 S.Ct. 254, 255, 43 L.Ed. 505]; Morissette v. United States, 342 U.S. 246, 270, n. 30 [, 72 S.Ct. 240, 253, 96 L.Ed. 288]. Cf. United States v. Petrillo, 332 U.S. 1, 10-11 [, 67 S.Ct. 1538, 1543, 91 L.Ed. 1877] [distinguishing in footnote 12 Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, on the ground that details omitted there were too obscene to be spread upon the minutes of the court.] That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal Procedure, is" }, { "docid": "3483404", "title": "", "text": "denying his motion to dismiss the indictment because Counts One and Two were unconstitutionally defective. “We review the district court’s factual findings on a motion to dismiss an indictment for clear error, but we review its legal conclusions de novo.” United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.2005). ‘When a criminal defendant challenges the sufficiency of an indictment pri- or to the verdict,” — as Defendant did here — “we apply a heightened scrutiny” to ensure that every essential element of an offense has been charged. United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). Specifically, [a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.... [T]he indictment must include every essential element of an offense,.... Id. (citations and quotation marks omitted); accord United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished.’ ” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); accord United States v. Lockhart, 382 F.3d 447, 449 (4th Cir.2004). However, any general description based on the statutory language “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887 (quotation mark omitted); see also Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (noting that an indictment must “descend to particulars” where the definition of an offense includes generic terms (quotation marks omitted)). “Thus, the indictment must also contain" }, { "docid": "5017845", "title": "", "text": "the criminal activity with which he is charged; and (3) enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ ... ‘Un doubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.’ ” Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-2908, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 15 Otto 611, 26 L.Ed. 1135 (1882) and United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888)). Count one charges a conspiracy spanning over five years, and lists nine overt acts committed in furtherance of the conspiracy. Rule 8(a) of the Federal Rules of Criminal Procedure prohibits the charging of more than one offense in one count. Rule 7(c), however, specifically authorizes charging in a single count that an offense was committed by more than one means. “The charging of multiple means constituting a single and continuing offense is thus permitted even though the components of that single offense may otherwise be treated as separate offenses____ The question that arises, therefore, is whether the statute under which the defendants have been charged ‘by its very nature, contemplates that several separate transactions form a single, continuing scheme, and may therefore be charged in a single count.’ ” United States v. Abrams, 543 F.Supp. 1184, 1190 (S.D.N.Y.1982) (quoting United States v. Daley, 454 F.2d 505, 509 (1st Cir.1972)); see United" }, { "docid": "5492897", "title": "", "text": "not meet its burden of proof to establish that Evangelista was convicted of tax evasion or a section 7201 crime “relating to tax evasion,” he is not deportable for commission of an aggravated felony under the INA. The government responds that the language of section 1101 (a) (43) (M) (ii) provides that any conviction under 26 U.S.C. § 7201 is an aggravated felony, as long as the revenue loss to the government exceeds $10,000, because the parenthetical phrase “relating to tax evasion” is merely descriptive of the offenses set out in 26 U.S.C. § 7201. And, the government continues, even if section 1101(a)(43)(M)(ii) is restricted to convictions under 26 U.S.C. § 7201 for offenses described in the parenthetical phrase — “relating to tax evasion” — a conviction for “defeat [of a] tax” is a conviction under 26 U.S.C. § 7201 that “relat[es] to tax evasion” because there is no legal distinction between tax evasion and “defeat [of a] tax.” The government asks us to conclude that Evangelista is removable whether convicted under section 7201 of tax evasion, defeating taxes, or both. 2. Analysis. There are, it seems to us, at most four offenses described in 26 U.S.C. § 7201:(1) “evad[ing] ... a[ ] tax”; (2) “defeating] a[ ] tax”; (3) “evad[ing] ... the payment thereof;” and (4) “defeat[ing] ... the payment thereof.” Cf. Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (“As this Court has recognized, § 7201 includes the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax.” (emphasis omitted)). Although Evangelista attempts to distinguish between “defeating]” a tax and “evad[ing]” a tax, courts and commentators use the two terms interchangeably. See, e.g., id. at 351, 85 S.Ct. 1004 (“As has been held by this Court, the elements of § 7201 are willfulness; the existence of a tax deficiency; and an affirmative act constituting an evasion or attempted evasion of the tax.” (citations omitted)); United States v. Schwartz, 325 F.2d 355," }, { "docid": "2595778", "title": "", "text": "coming under the general description, with which he is charged.” United States v. Hess, 124 U.S. 483, 487 [, 8 S.Ct. 571, 31 L.Ed. 516], See also Pettibone v. United States, 148 U.S. 197, 202-204 [, 13 S.Ct. 542, 545, 37 L.Ed. 419]; Blitz v. United States, 153 U.S. 308, 315 [, 14 S.Ct. 924, 927, 38 L.Ed. 725]; Keck v. United States, 172 U.S. 434, 437 [, 19 S.Ct. 254, 255, 43 L.Ed. 505]; Morissette v. United States, 342 U.S. 246, 270, n. 30 [, 72 S.Ct. 240, 253, 96 L.Ed. 288]. Cf. United States v. Petrillo, 332 U.S. 1, 10-11 [, 67 S.Ct. 1538, 1543, 91 L.Ed. 1877] [distinguishing in footnote 12 Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, on the ground that details omitted there were too obscene to be spread upon the minutes of the court.] That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions [citing in footnote 13 United States v. Lamont [2 Cir.] 236 F.2d 312; Meer v. United States [10 Cir.] 235 F.2d 65; Babb v. United States [5 Cir.] 218 F.2d 538; United States v. Simplot [D.C.] 192 F.Supp. 734; United States v. Devine’s Milk Laboratories, Inc. [D.C.] 179 F.Supp. 799; United States v. Apex Distributing Co. [D.C.] 148 F.Supp. 365.] This is not a case where a trial has been had without any claim being made concerning the insufficiency of the indictment, in which event a view is sometimes taken more generous to a questionable indictment than has been applied where the attack on the indictment has been timely. Almost a month prior to trial appellant interposed and submitted arguments in support of a motion for judgment of acquittal setting out valid reasons why the indictment was insufficient. In sum, the indictment here, after all has been said and done, pleads little more than the statutory language without any fair indication of the nature or character of the scheme" }, { "docid": "2926395", "title": "", "text": "sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; * * *.’ United States v. Carll, 105 U.S. 611, 612 [26 L.Ed. 1135]. ‘Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.’ United States v. Hess, 124 U.S. 483, 487 [8 S.Ct. 571, 31 L.Ed. 516]. See also Pettibone v. United States, 148 U.S. 197, 202-204 [13 S.Ct. 542, 37 L.Ed. 419]; Blitz v. United States, 153 U.S. 308, 315 [4 S.Ct. 924, 38 L. Ed. 725]; Keck v. United States, 172 U.S. 434, 437 [19 S.Ct. 254, 43 L.Ed. 505]; Morisette v. United States, 342 U.S. 246, 270, n. 30 [72 S.Ct. 240, 96 L.Ed. 288]. Cf. United States v. Petrillo, 332 U.S. 1, 10-11 [67 S.Ct. 1538, 91 L.Ed. 1877].” Section 7201 of the Internal Revenue Code of 1954 proclaims that any person who willfully attempts to evade or defeat any tax imposed by Title 26 in any manner shall be guilty of a felony. In Sansone v. United States, 380 U.S. 343, p. 351, 85 S.Ct. 1004, p. 1010, 13 L.Ed.2d 822 (March 29,* 1965), the Court states: ■“[T]he elements of § 7201 are willfulness; the existence of a tax deficiency, Lawn v. United States, 355 U.S. 339, 361 [78 S.Ct. 311, 2 L.Ed.2d 321]; Spies v. United States [317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)], supra, 317 U.S. at 496 [63 S.Ct. at 366]; and an affirmative act constituting an evasion or attempted evasion of the tax, Spies v. United States, supra.” In its introductory part, Count II names the Company as being a corporation with its business office at Exeter, Pa.; it identifies Dougherty as having been president of the Company" }, { "docid": "11215128", "title": "", "text": "charged.” FED. R. CRIM. P. 7(c). The Supreme Court has set forth the following requirements: [A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); accord United States v. Elkins, 885 F.2d 775, 782 (11th Cir.1989) (“An indictment must set forth the elements of the offense in a manner which fairly informs the defendant of the charges against him and enables him to enter a plea which will bar future prosecution for the same offense.”). The Court added the following guidelines for indictments that “track” the language of a statute: It is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as “those words of themselves fully, directly, and expressly without any uncertainty or ambiguity set forth all the elements necessary to constitute the offence intended to be punished.” [United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881).] “Undoubtedly the language of the statute may be used in the general description’ of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description with which he charged.” [United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888).] Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887. In the present case, the court finds that each count adequately informs Powell of the specific offense with which he is charged and either a conviction or an acquittal will bar future prosecution for the same offenses. By tracking the language of 18 U.S.C. § 2422(b), Counts One and Two state the essential elements of the violations alleged under this statute. In addition, Counts One and Two provide additional, alleged facts which make clear the violations alleged. Each" }, { "docid": "4441545", "title": "", "text": "the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see Fed.R.Crim.P. 7(c)(1). As to Comissiong’s claim that the information did not set forth the elements of the crime charged, the Hamling Court set forth the appropriate standard for this court’s analysis: “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’” Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)). As to Comissiong’s challenge to the absence of factual allegations in the charge, a general description of an offense “ ‘must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.’ ” Id. 418 U.S. at 117-18, 94 S.Ct. at 2908 (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888)). 1. The Elements of the Crime Charged The information sufficiently set forth the elements of the crime charged. Count II of the criminal information that the United States Attorney filed on May 16, 1988, charged as follows: On or about the 3rd day of May, 1988 in the Virgin Islands of the United States, Judicial Division of St. Thomas and St. John, KEITH COMMISSIONG [sic] without being authorized by law, did possess a 357 Dan Wesson Magnum during the commission of a crime of violence, to wit: murder, in violation of Title 14, Virgin Islands Code, Section 2253(a). Section 2253(a) states: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in" }, { "docid": "11215129", "title": "", "text": "set forth all the elements necessary to constitute the offence intended to be punished.” [United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881).] “Undoubtedly the language of the statute may be used in the general description’ of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description with which he charged.” [United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888).] Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887. In the present case, the court finds that each count adequately informs Powell of the specific offense with which he is charged and either a conviction or an acquittal will bar future prosecution for the same offenses. By tracking the language of 18 U.S.C. § 2422(b), Counts One and Two state the essential elements of the violations alleged under this statute. In addition, Counts One and Two provide additional, alleged facts which make clear the violations alleged. Each count specifies the dates of Powell’s alleged criminal activity, the facility and means of interstate commerce allegedly used, and the screen names of the persons Powell allegedly contacted. Similarly, for Counts Three through Seven, the Superseding Indictment states the essential elements of the alleged 18 U.S.C. § 2423(a) violations by tracking the statutory language. Counts Three through Seven also specify the state law violations necessary to trigger § 2423 as well as the alleged origination and destination points of interstate travel, While Counts Three through Seven only state the year and the month or season of each alleged offense, specific dates are unnecessary and the court finds that each count states the alleged timing of the offense with sufficient clarity. See United States v. Ellender, 947 F.2d 748, 755-56 (5th Cir.1991) (holding precise dates unnecessary and approving use of a two-month period of time in indictment). Finally, as stated above, an indictment only needs to “set forth the elements of the offense in a manner which fairly informs the defendant of the charges against him" }, { "docid": "2926394", "title": "", "text": "as to Count II because it failed to allege a crime against the United States. That motion was based on the ground that the count fails to charge a crime against the United States because it does not, excluding the last paragraph under the overt acts, allege, as is asserted under Counts I and III, that a tax in excess of that reported by the Company was due the United States. Happily, the rule that an indictment, to be sufficient, must contain all the elements of a crime “and sufficiently apprise the defendant of what he must be prepared to meet” is still a vital part of our Federal criminal jurisprudence. Russell v. United States, 369 U.S. 749, 763-766, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Deutsch, 243 F.2d 435 (C.A.3, 1957); United States v. Tornabene, 222 F.2d 875, 878, (C.A.3, 1955). At page 765, 82 S.Ct. at page 1047 of the Russell case, supra, the Supreme Court states: “ * » * ‘In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; * * *.’ United States v. Carll, 105 U.S. 611, 612 [26 L.Ed. 1135]. ‘Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.’ United States v. Hess, 124 U.S. 483, 487 [8 S.Ct. 571, 31 L.Ed. 516]. See also Pettibone v. United States, 148 U.S. 197, 202-204 [13 S.Ct. 542, 37 L.Ed. 419]; Blitz v. United States, 153 U.S. 308, 315 [4 S.Ct. 924, 38 L. Ed. 725]; Keck v. United States, 172 U.S. 434, 437 [19 S.Ct. 254, 43 L.Ed. 505]; Morisette v. United States, 342 U.S. 246, 270, n. 30 [72 S.Ct. 240," } ]

[ { "docid": "12448779", "title": "", "text": "period of the Texas limitation statute, but that he did not allege that respondent was not injured by his delay. See memorandum filed December 1, 1953. Libellant, however, was permitted to file amended pleadings, and he filed on January 20, 1954, his Second Amended Libel. Similar exceptions by respondent were on February 3, 1954, filed against such amended pleadings, and this is a hearing thereon. I conclude: (a) That the Texas two-year statute of limitation is applicable and not the Oregon statute, and that libellant’s claim is cut off thereby. (b) That libellant does not allege in his Amended Libel facts which excuse him from filing his suit within said two-year period. (c) That libellant does not allege facts which show that respondent was not injured by failure to file such suit. Libellant’s suit is, therefore, dismissed. Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31; Kane v. Union of Soviet, 3 Cir., 189 F.2d 303; McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611. Aetna Cas. & Sur. Co. v. Rhine, 5 Cir., 152 F.2d 368; Pacific Employers Ins. Co. v. Oberlechner, 5 Cir., 161 F.2d 180; Morales v. Moore-McCormack, D.C., 109 F.Supp. 585; Id., 5 Cir., 208 F.2d 218; McChristian v. Lykes Bros. S.S. Co., D.C., 94 F.Supp. 149. Let appropriate order be drawn and presented. . McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303; Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet, D.C., 89 F.Supp. 435." } ]

[ { "docid": "9743229", "title": "", "text": "must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama R. Co., supra. However, since the action was brought after the analogous statute of limitations had run, the libellant has the burden of showing that he had an excuse for delay and that respondent has not been prejudiced. Morales v. Moore-McCormack Lines, Inc., supra; McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (5th Cir. 1962). It is undisputed that the sole excuse offered by the libellant for his delay was his belief that it was impossible for him to sue his employer up until the Supreme Court rendered its decision in Reed v. Steamship Yaka, supra. This, as the district court correctly held, is not an adequate excuse for libellant’s delay. McGrath v. Panama R. Co., 298 F. 303 (5th Cir. 1924). As this Court stated in Morales v. MooreMcCormack Lines, Inc., supra: “As to their claim of ignorance of their legal right to sue a third party, the steamship lines which had contracted with their employer, we know of no principle which enables persons to plead, not excusable ignorance of facts, but of the law which accorded them the right to sue.” Appellant’s mistake as to the law or his unwillingness to press his claim when there was authority which indicated he might not prevail, cannot serve to excuse his delay in prosecuting the libel. As to the district court’s holding that there was no excuse for his delay, we affirm. Prejudicial Delay We are left with the question of whether or not the respondents have been prejudiced in asserting their defense by the libellant’s delay. A suit in admiralty is barred by laches only when there has been both unreasonable delay in the filing of the libel and consequent prejudice to the party against whom suit is brought. As we have repeatedly emphasized, “Laches is much more than time. It is time plus prejudicial harm," }, { "docid": "22583974", "title": "", "text": "BURKE, District Judge. The suit herein was brought to recover damages ::or personal injuries which the libelant claims he sustained on October 16,1950, while in the employment of Gulf Tide Stevedoring Co. as a longshoreman, while he was assisting in loading the S.S. Panamolga while the vessel was in the Port of Galveston, Texas. The libel was filed April 1, 1954, about three years and five months after the alleged injuries. The only process which was issued and served was in personam. Service was made on both respondents by serving Dalmore Corp., a New York corporation, personally and as agent for Compañía Naviera Dalmática, S. A., owner of the S.S. Panc.molga,. Respondents excepted to the libel on the ground that the suit was barred by laches. The exception was sustained. An order was entered providing for dismissal of the: libel unless an amended libel was filed and served which pleaded facts showing special circumstances excusing the delay. An amended libel was filed to which exception was again made and sustained. The libelant was given leave to file a second amended libel to explain the delaj in filing suit. The respondents again excepted. The exception was sustained a:id the libel was dismissed with prejudice. The District Judge held that the libel was not filed until both the New York and the Texas limitation Statutes, which would be applicable to similar civil actions, had run. The question presented is whether the District Judge was right in requiring the libelant to show special circumstances excusing the delay in filing suit. Since the action was brought in a district court in New York, the limitation statutes to be referred to by analogy are those of New York. Redman v. United States, 2 Cir., 176 F.2d 713; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. If the analogous statutes of limitations had run, the libelant was properly required to show special circumstances excusing the delay in filing suit. Reconstruction Finance Corp. v. Harrisons & Crosfield, 2 Cir., 204 F.2d 366, 37 A.L.R. 2d" }, { "docid": "18444934", "title": "", "text": "by the insurer to the direct action instituted by the insured. (2) If the plaintiff in such an action brings suit against the insured alone, such shall not be deemed to deprive him of the right, by subrogation to the rights of the insured under the policy, to maintain action against and recover from the insurer after securing final judgment against the insured. — Ins. Code § 20.030.” . A libel may, indeed, be dismissed on motion where it appears on its face that the analogous local statute of limitations has run and, as in the instant case, no facts are pleaded which would indicate that libellant may be able to prove absence of laches. See e. g., Hays v. Port of Seattle, 251 U.S. 233, 239, 40 S.Ct. 125, 64 L.Ed. 243 (1920); Redman v. United States, 176 F.2d 713 (2d Cir. 1949) ; Kane v. U. S. S. R., 189 F.2d 303 (3d Cir. 1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952) ; Doherty v. Federal Stevedoring Co., 198 F.Supp. 191 (S.D.N.Y.1961). He may be allowed to proceed if he is able to amend to allege facts justifying the delay and- indicating an absence of prejudice to the defendant. . One might then ask why it is not barred by a collateral estoppel. See 12 G. Cough, Cyclopedia of Insurance Law § 45.923 (Anderson 2d ed. 1965). Presumably plaintiff intends to litigate the novel contention that the duty of the insurer is greater than that of Sea-Land, relying on cases holding that personal defenses of an insured, such as insolvency, limitation of liability, and sovereign immunity, are not available to an insurer. Torres v. Interstate Fire & Casualty Co., 275 F.Supp. 784 (D.P.R.1967). To that extent, plaintiff may hope to show that his claim is different from the one already decided against him, and thus to avoid an es-toppel. As the issue is not before us, we do not now pass upon the merit of any such contention." }, { "docid": "17365805", "title": "", "text": "Indeed, where a respondent had notice of the accident two months after it occurred and had participated in the search for witnesses at the request of other parties, the court of appeals in this circuit held that the presumption of detriment had not been rebutted. Redman v. United Fruit Co., 2 Cir., 185 F.2d 553 (a later appeal of the Redman case cited above). There are no equities urged in this case other than the matters already considered and therefore I do not think that this is a case calling for a more elastic application of the analogous state statute of limitations as was done in the Gardner case where the court found libelant to be diligent. Libelant places his reliance on the case of McKeefry v. United States, D.C.E.D.Pa., 109 F.Supp. 839, 841. There the court took the view that the question of the existence of laches “ordinarily is incapable of determination on preliminary attacks, such as, on motions to dismiss” and that its determination must await the trial or a special hearing. There is. some support to be found for these views in several cases. Shamrock Towing Co. v. Pennsylvania R. Co., D.C.S.D.N.Y., 84 F.Supp. 402; Sladich v. Wessel, Duval & Co., Inc., 1947 A.M.C. 912; The Cleary No. 62, D.C.E.D.N.Y., 68 F.Supp. 804; United States v. Alex Dussel Iron Works, 5 Cir., 31 F.2d 535; Elting v. McDonnell, D.C.S.D.N.Y., 4 F.Supp. 988. It seems to me, however, that it has been settled in this circuit and in the third circuit that a respondent in an admiralty case may take advantage of laches appearing on the face of the libel by exceptions. The Sydfold, 2 Cir., 86 F.2d 611; Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, 3 Cir., 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676. On the other hand, exceptions on the ground of laches should not be sustained where the facts pleaded provide a sufficient indication that on the trial a possible excuse may be established, Hughes v. Roosevelt, 2 Cir.," }, { "docid": "12837360", "title": "", "text": "HOFFMAN, District Judge. Libellant’s action, if any, is alleged to have accrued on October 2, 1947, at the time libellant was discharged from the Honduran S/S Dolly Madison. This suit was instituted on March 24, 1955, approximately seven and one-half years later. The claim is based upon wages alleged to be due, together with “waiting time” stated to have accrued since October 2, 1947. Respondents assert that the action is barred under the doctrine of laches. It is perfectly clear that laches should be applied in the instant case. The libel asserts no reason why the action was not previously instituted and, while libellant insists that the burden is upon the respondents • to “show prejudice”, this rule is not applicable when the libel discloses on its face that the statute of limitations has already run. It is fundamental that, in applying the doctrine of laches, courts of admiralty generally follow the analogy of the state statute of limitations and hold that the claim is barred unless the libellant shows special circumstances excusing the delay. When the delay is apparent on the face of the pleading, it is incumbent upon the libellant to plead and prove facts negativing laches or tolling the statute of limitations. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Detriment to the adverse party may be presumed from delay shown on the face of the pleading in the absence of proof to the contrary. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; McChristian v. Lykes Bros., D.C., 94 F.Supp. 149. No request has- been made for leave to amend the libel, and-no suggestion has been advanced with respect to the .cause of delay. Aside from the possible application of the- Virginia “borrowing statute”, Sec. 8-23, Code of Virginia 1950, the ordinary period for the statute of limitations would be five years assuming, of course, the execution of a written agreement of employment. Applying the full equivalent of" }, { "docid": "5273504", "title": "", "text": "of Action * * * and negativing any prejudice to the Respondent resulting from such delay, and by pleading such additional material facts as are necessary to state causes of action under the Federal Statutes referred to in said Fourth and Fifth Causes of Action.” . Paragraph 5 of the proposed amended libel stated, “5. That the Respondent’s records on account of said illegal advances and deductions are now in evidence in this Court by reason of the deposition of the Respondent’s Personnel Manager, Ethel E. Moore, who testified that the records therefore which are now in evidence, are complete in all details.” . Our opinion in McMahon emphasizes that after granting Respondent’s motion to dismiss the claim for overtime for laches “but without prejudice and with leave * * * to amend” the Libelant “made no amendment * * * ” and filed no pleadings showing either excuse for delay or lack of prejudice. . Morales v. Moore-McCormick Lines, Inc., 5 Cir., 1953, 208 F.2d 218, 1954 A.M.C. 87; McDaniel v. Gulf & South American Steamship Co., 5 Cir., 1955, 228 F.2d 189, 1956 A.M.C. 105; Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 5 Cir., 1958, 261 F.2d 861, 865, 1959 A.M.C. 148; Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415, 1961 A.M.C. 1698; Delgado v. The Malula, 5 Cir., 1961, 291 F.2d 420, 1961 A.M.C. 1706; McMahon v. Pan American World Airways, Inc., 5 Cir., 1962, 297 F.2d 268, 1962 A.M.C. 655; Flowers v. Savannah Machine & Foundry Co., 5 Cir., 1962, 310 F.2d 135. . See a comparative analysis of several of our decisions listed in note 5, supra, in Pure Oil Co. v. Snipes, 5 Cir., 1961, 293 F.2d 60, 69-70, 1961 A.M.C. 1651. All of these subtle factors are elucidated in Czaplicki v. S.S. Hoegh Silvercloud, 1956, 351 U.S. 525, 533, 76 S.Ct. 946, 951, 100 L.Ed. 1387, 1956 A.M.C. 1465. . The deposition and the exhibits were incorporated by reference into the amended libel, see note 3, supra, so that the Court had considerably more than bare bones pleadings." }, { "docid": "20958376", "title": "", "text": "DIMOCK, District Judge. Respondent excepts to the libel and seeks its dismissal on two grounds: (1) that it appears on the face of the libel that libelant is guilty of laches; and (2) that the libel lacks the necessary allegation of negligence. This suit was commenced more than four years after the alleged claim arose to recover for damage which libelant asserts was sustained by its scow while the scow was under demise charter to respondent. The libel alleges that the scow was delivered to respondent in good condition on April 20, 1956, and was returned in damaged condition on May 21, 1956, the damage not being due to ordinary wear and tear. I shall first consider the question of laches. In applying the doctrine of laches courts of admiralty customarily follow the analogy of the state statute of limitations. VvThere it appears on the face of the libel that the applicable state statute of limitations has run, the court will grant a motion to dismiss the libel unless the facts pleaded provide a sufficient indication that on the trial the libelant may possibly be able to prove the absence of laches. See, e. g., Redman v. United States, 2 Cir., 176 F.2d 713; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901; The Sydfold, 2 Cir., 86 F.2d 611; Tesoriero v. A/S J. Ludwig Mowinckels Rederi, D.C.S.D.N.Y., 113 F.Supp. 544. I must regard state law as determinative in finding the applicable statute of limitations in the present action. See Oroz v. American President Lines, 2 Cir., 259 F.2d 636, 639, certiorari denied 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572; Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766. It may seem strange at first blush that federal maritime law, which merely incorporates state periods of limitations as rules of thumb into its doctrine of laches, does not itself determine the applicable statute of limitations. If federal maritime law did make this determination there would undoubtedly be far more uniformity with respect to the measure of" }, { "docid": "17365801", "title": "", "text": "was not getting compensation and he required treatment for his injuries. An investigation at that time did not result in locating the vessel. Next are alleged the facts relating to the absence of prejudice to respondents resulting from libelant’s delay. The names and addresses of three persons who had knowledge of the injury or who observed the accident and can testify as to the manner in which libelant was injured are . supplied. Doctors’ reports and the reports of libel-ant’s employer -are on file with the Compensation Commission. The Supreme Court expressed its views on the question of laches in Gardner v. Panama R. Co., 342 U.S. 29, 30, 72 S.Ct. 12, 13, 96 L.Ed. 31, where it said: “Though the existence of laches is a question primarily addressed to the discretion of the trial court, the matter should not be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there -has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” The facts alleged are in my view insufficient to excuse the delay in this case. They come to little more than that libelant was injured, that he has 'been out of work for a long time, that he received treatment, that when he stopped receiving compensation he needed more money and he therefore retained counsel and instituted this action against respondents. There is no fact alleged indicating that he was unable to retain counsel at an earlier date. With respect to the question of libelant’s knowledge of his rights, it would appear that even erroneous advice of counsel or neglect by counsel would not be enough to excuse delay in instituting action. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551. I need not, however, go so far. Libelant was unusually careful not to allege that he was ignorant" }, { "docid": "17365806", "title": "", "text": "is. some support to be found for these views in several cases. Shamrock Towing Co. v. Pennsylvania R. Co., D.C.S.D.N.Y., 84 F.Supp. 402; Sladich v. Wessel, Duval & Co., Inc., 1947 A.M.C. 912; The Cleary No. 62, D.C.E.D.N.Y., 68 F.Supp. 804; United States v. Alex Dussel Iron Works, 5 Cir., 31 F.2d 535; Elting v. McDonnell, D.C.S.D.N.Y., 4 F.Supp. 988. It seems to me, however, that it has been settled in this circuit and in the third circuit that a respondent in an admiralty case may take advantage of laches appearing on the face of the libel by exceptions. The Sydfold, 2 Cir., 86 F.2d 611; Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, 3 Cir., 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676. On the other hand, exceptions on the ground of laches should not be sustained where the facts pleaded provide a sufficient indication that on the trial a possible excuse may be established, Hughes v. Roosevelt, 2 Cir., 107 F.2d 901, see Virgin Islands Corp. v. W. A. Taylor & Co., 2 Cir., 202 F.2d 61, (dealing with a motion to dismiss a complaint) and I do not think that rulings on exceptions should be made where the court does not have sufficient facts before it to determine the questions presented. Federal Insurance Co. v. American Export Lines, Inc., D.C.S.D.N.Y., 113 F.Supp. 540. Nevertheless the facts pleaded, do not, in my view, give a sufficient indication of a possible excuse to lead the court to permit further amendment or to require withholding a ruling on exceptions on the question of laches. It is true that all of the equities of the parties are not before me for it is only libelant’s pleading that is being considered. Presumably all the equities favoring libelant are before me, however, and I have already concluded that they do not warrant a departure from the analogous state statute of limitation. Exceptions sustained. . Libelant has withdrawn the contention made in oral argument that a statute of limitations with" }, { "docid": "5273503", "title": "", "text": "not merely that one loses what he otherwise would have kept, but that delay has subjected him to a disadvantage in asserting and establishing his claimed right or defense.” Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 5 Cir., 1958, 261 F.2d 861, 865, 1959 A.M.C. 148. Consequently as to Count Five the decree must be reversed and the cause remanded for further and not inconsistent proceedings. Affirmed in part. Reversed and Remanded in part. . On the eve of trial the shipowner withdrew the claim for set-off and stipulated that Libelant “if entitled” to “earned wages” or “any unearned wages” is entitled to the specified sums actually thereafter allowed. . The order of October 13, 1961, sustaining the exceptions for laches as well as failure to state a claim, denied the motion to amend the libel but “with leave to refile amendments * * * within twenty * * * (20) days * * * upon the condition that Libelant allege facts excusing his delay in filing the Fourth and Fifth Causes of Action * * * and negativing any prejudice to the Respondent resulting from such delay, and by pleading such additional material facts as are necessary to state causes of action under the Federal Statutes referred to in said Fourth and Fifth Causes of Action.” . Paragraph 5 of the proposed amended libel stated, “5. That the Respondent’s records on account of said illegal advances and deductions are now in evidence in this Court by reason of the deposition of the Respondent’s Personnel Manager, Ethel E. Moore, who testified that the records therefore which are now in evidence, are complete in all details.” . Our opinion in McMahon emphasizes that after granting Respondent’s motion to dismiss the claim for overtime for laches “but without prejudice and with leave * * * to amend” the Libelant “made no amendment * * * ” and filed no pleadings showing either excuse for delay or lack of prejudice. . Morales v. Moore-McCormick Lines, Inc., 5 Cir., 1953, 208 F.2d 218, 1954 A.M.C. 87; McDaniel v. Gulf & South" }, { "docid": "8702170", "title": "", "text": "Victory Carriers, Inc., 2 Cir. 1963, 316 F.2d 63. “In the absence of extraordinary circumstances excusing delay and negativing prejudice, passage of time beyond the analogous state statute of limitations is presumed to have caused prejudicial detriment” to defendant. (Emphasis supplied.) Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F.2d 303; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218, 220; McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268. Plaintiffs have not suggested that extraordinary circumstances are present in this case. “If laches will bar a claim when the libel is filed after the applicable statute of limitations has run unless the delay was both excusable and harmless, it becomes of importance to determine which party bears the burden of proof on the issues of excuse and prejudice.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). In such cases, “the libel-ant has the burden of showing that he has an excuse for delay and that respondent has not been prejudiced.” McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268, 270; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218; Vegas v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; United States v. Alex Dussel Iron Works, Inc., 5 Cir. 1929, 31 F.2d 535. In commenting on Dussel, Gilmore & Black state, “ . . . it is now approved doctrine that a plaintiff who brings suit after the statute has run must plead and prove both his excuse and no prejudice to defendant.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). See also McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F. 303, 304. The absence of special circumstances excusing plaintiffs’ delay in seeking relief in the present litigation clearly appears on the face of the complaint. McDaniel v. Gulf and South American Steamship Co., 5 Cir. 1955, 228 F.2d 189, 192. If, however, the plaintiffs wish to offer evidence to support a contrary conclusion, they will, on motion filed within" }, { "docid": "20958377", "title": "", "text": "indication that on the trial the libelant may possibly be able to prove the absence of laches. See, e. g., Redman v. United States, 2 Cir., 176 F.2d 713; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901; The Sydfold, 2 Cir., 86 F.2d 611; Tesoriero v. A/S J. Ludwig Mowinckels Rederi, D.C.S.D.N.Y., 113 F.Supp. 544. I must regard state law as determinative in finding the applicable statute of limitations in the present action. See Oroz v. American President Lines, 2 Cir., 259 F.2d 636, 639, certiorari denied 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572; Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766. It may seem strange at first blush that federal maritime law, which merely incorporates state periods of limitations as rules of thumb into its doctrine of laches, does not itself determine the applicable statute of limitations. If federal maritime law did make this determination there would undoubtedly be far more uniformity with respect to the measure of limitations. Thus, for example, unseaworthiness claims in federal courts would no longer be treated as actions on a contract obligation if the New York statute of limitations governed but not if the New Jersey statute were applicable. Compare Le Gate v. The Pana-molga, 2 Cir., 221 F.2d 689, with Oroz v. American President Lines, 2 Cir., 259 F.2d 636, certiorari denied 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572. On the other hand, however, the mere use of state statutes of limitations as rules of thumb leads to divergent results in federal maritime cases, and perhaps treating state law as determinative for the purpose of finding the applicable statute of limitations does not appreciably increase this divergence of result while it does assure a measure of uniformity between state courts and federal courts in the same district. The parties have submitted this question as though the period of limitation prescribed by the law of the State of New York was the period applicable and I shall so assume. Libelant contends that the six year" }, { "docid": "8555278", "title": "", "text": "manner now testified to by the plaintiff, it would, of course, be of importance to examine the flooring through which plaintiff claims that he fell. On the other hand, if this action had been instituted at any time shortly after August 25, 1957, when the vessel arrived in Manila, it would have been timely brought and defendant could not complain as to lack of notice. The Court feels that, despite the inexcusable delay, which is not discussed as it is too obvious, the only possible prejudice to defendant could result from the witnesses’ lack of memory or the inability to locate other longshoremen who were in the hatch with plaintiff. Apparently the law requires that both inexcusable delay on the part of the plaintiff or libellant and prejudice to the defendant or respondent must exist before laches may be applied to bar the action. Prejudice is presumed when the limitation period as provided by the state statute has expired and, in such event, the bur den rests upon the plaintiff-libellant to rebut this presumption by facts alleged and proven. Inexcusable delay is not per se sufficient to bar the action but, when aided by the presumption of prejudice, the action must be dismissed. As was said in Gardner v. Panama R. Co., 342 U.S. 29, 31, 72 S.Ct. 12, 13, 96 L.Ed. 31: “Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” While Gardner does not expressly state that both inexcusable delay and prejudice must exist to bar the action, the interpretations placed upon the Gardner decision support this view. Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Go., 5 Cir., 261 F.2d 861, 865; McDaniel v. Gulf & South American Steamship Co., 5 Cir., 228 F.2d 189, 192; Morales v. Moore-McCormack Lines, Inc., 5 Cir., 208 F.2d 218. Delay ipso facto will not defeat the claim. The Fulton, 2 Cir., 54 F.2d 467, 469. There is a further reason which may result in no" }, { "docid": "8702169", "title": "", "text": "U.S.C.A. § 56; La.C.C. 2315, 3536. The affidavits effectively demonstrate prejudice; that there are pending claims with respect to others does not erase the fact that no claim was presented by these plaintiffs for five years. The defendants may know where many of the crew are; but surely these witnesses’ memories of the facts must be affected by this time. There are two conditions precedent to a successful plea of laches: (1) delay in seeking a remedy on the part of the plaintiff, and (2) prejudice to the defendant resulting from this delay. Gardner v. Panama Railway Company, 1951, 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31. “Although frequently classified as a separate element, the inexcusability of a delay ... is closely intertwined with the predominent factor of detriment or lack of detriment.” Molnar v. Gulf Coast Transit Company, 5 Cir. 1967, 371 F.2d 639, 642; Fidelity 6 Casualty Company v. C/B MR. KIM, 5 Cir. 1965, 345 F.2d 45; Akers v. State Marine Lines, Inc., 5 Cir. 1965, 344 F.2d 217; Larios v. Victory Carriers, Inc., 2 Cir. 1963, 316 F.2d 63. “In the absence of extraordinary circumstances excusing delay and negativing prejudice, passage of time beyond the analogous state statute of limitations is presumed to have caused prejudicial detriment” to defendant. (Emphasis supplied.) Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415, 416; McGrath v. Panama Railway Company, 5 Cir. 1924, 298 F.2d 303; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218, 220; McMahon v. Pan-American World Airways, 5 Cir. 1962, 297 F.2d 268. Plaintiffs have not suggested that extraordinary circumstances are present in this case. “If laches will bar a claim when the libel is filed after the applicable statute of limitations has run unless the delay was both excusable and harmless, it becomes of importance to determine which party bears the burden of proof on the issues of excuse and prejudice.” G. Gilmore & C. Black, The Law of Admiralty, p. 632 (1957). In such cases, “the libel-ant has the burden of showing that he has an excuse for delay and that" }, { "docid": "9743235", "title": "", "text": "the delay has not been injurious, then the merits of the unseaworthiness claim must be tried. The judgment is hereby reversed and the cause remanded for further proceedings consistent with this opinion. . “On the 27th day of September, 1963, came on to be heard respondent’s motion for summary judgment, which was duly noticed on the motion calendar of this Court, and upon consideration of the motion and the briefs and arguments of counsel submitted, it appeared to the Court that this libel was filed more than three years and two months after the occurrence made the basis of the libel and therefore after the analogous limitation period of three years had expired, and it further appearing to the Court that libellant has failed to show, in controverting such motion, that there is any excuse for his delay in filing the libel, and it further appearing to the Court that respondent has shown prejudice to it through delay and the resultant loss of witnesses, and that respondent’s motion for summary judgment on the ground of laches should, therefore, be granted; it is accordingly, “ORDERED, ADJUDGED and DECREED that respondent’s motion for summary judgment is in all things granted; it is further, “ORDERED, ADJUDGED and DECREED that the libel is dismissed with costs. “And the libellant having filed and the Court having considered libellant’s motion for rehearing, and determining that such motion should be denied, it is accordingly, “ORDERED, ADJUDGED and DECREED that libellant’s motion for rehearing is in all things denied, as of December 31, 1963, at which time the Court made a docket notation to this effect. “ENTERED at Houston, Texas, on this 25th day of February, 1965.” . Gardner v. Panama R. Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951); Morales v. Moore-McCormack Lines, Inc., 208 F.2d 218 (5th Cir. 1953); Loverich v. Warner Co., 118 F.2d 690, 691 (3rd Cir. 1941). . Flowers v. Savannah Machine & Foundry, 310 F.2d 135 (5th Cir. 1962); Crabtree v. The SS Julia, 290 F.2d 478 (5th Cir. 1961). . Gutierrez v. Waterman SS Corp., 373 U.S. 206," }, { "docid": "22819503", "title": "", "text": "respondents’, but his brief now requests-the opportunity to submit it, if such proof i-s deemed necessary. We are willing to allow him to do so, as was done in The Sydfold, 2 Cir., 86 F.2d 611 and Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Accordingly the decree dismissing the libel is affirmed, but with the ■right to the libellant to file aji amended libel as against United Fruit Company within a time to be fixed by the District Court. Finding 18 states that leave to amend their answers was granted to both United Fruit Company aud Turbine Engineering Corp. although the appellant notes that the record does not disclose that the latter made any such motion. We regard this of no moment. The court had previously taken under advisement motions by both respondents to reopen the case to indicate on the record that the suit was barred by the statute and by laches. Evidently the court treated this motion as equivalent to a motion to amend Turbine’s answer and granted it. See Guerrini v. United States, 2 Cir., 167 F.2d 352, 356, certiorari denied 335 U.S. 843, 69 S.Ct. 65; Goodman v. Silverman, 231 App.Div. 84, 85, 246 N.Y.S. 319; Rudger v. Mucklon Holding Co., Inc., 240 App.Div. 188, 190, 269 N.Y.S. 723; Bravado v. Murray, 257 App.Div. 271, 272, 12 N.Y.S.2d 893; affirmed 283 N.Y. 619, 28 N.E.2d 29. Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766, 767; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. 902; The Sydfold, 2 Cir., 86 F.2d 611, 612; Westfall Larson & Co. v. Allman-Hubble Tug Boat Co., 9 Cir., 73 F.2d 200, 203 ; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 552. The Sydfold, 2 Cir., 86 F.2d 611, 612; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901, 902. M’Grath v. Panama R. Co., 5 Cir., 298 F. 303, 304; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 552." }, { "docid": "9743228", "title": "", "text": "excuse for delay are undisputed. The date of the Appellant’s alleged injury is April 17, 1960. He first filed his suit against Appellees in a Texas court, but “it having been brought to the attention of the plaintiff that he had sued his employer * * * ”, he had that suit dismissed. Subsequently, after the Supreme Court decided Reed v. Steamship Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) Ap- pell'ant filed this libel on June 17, 1963, some three years and two months after the alleged injury. He asserts that his delay was excusable because up until the Reed case was decided he believed that the law was settled that he could not sue his employer. The district court correctly found the analogous limitation period on this unseaworthiness claim to be three years. Although Appellant’s libel was filed after the expiration of three years, the existence of laches cannot be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama R. Co., supra. However, since the action was brought after the analogous statute of limitations had run, the libellant has the burden of showing that he had an excuse for delay and that respondent has not been prejudiced. Morales v. Moore-McCormack Lines, Inc., supra; McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (5th Cir. 1962). It is undisputed that the sole excuse offered by the libellant for his delay was his belief that it was impossible for him to sue his employer up until the Supreme Court rendered its decision in Reed v. Steamship Yaka, supra. This, as the district court correctly held, is not an adequate excuse for libellant’s delay. McGrath v. Panama R. Co., 298 F. 303 (5th Cir. 1924). As this Court stated in Morales v. MooreMcCormack Lines, Inc.," }, { "docid": "23561610", "title": "", "text": "was asked to amend the libel, this court, if it affirms the judgment, should order that the affirmance be without prejudice to filing an amended libel within a time to be fixed by the district judge, we find it sufficient to point to the fact that the district judge did not dismiss the libel on the exception alone without affording appellants an opportunity to state the reasons excusing their delay. On the contrary, he accepted for the purpose of his judgment the facts stated by libellants in their brief and there could be no point in permitting libellants to amend in order to allege in their libel the very same matters which the district judge, in the exercise of his informed discretion, has correctly held were not grounds for excuse. We add only this further, upon the matter of prejudice, that in a suit of this kind, brought upon allegations of the existence, on a certain day and date more than two and a half years before, of dangerous fumigants in the hold of a vessel, it would be much more difficult for the respondent to prepare its defense with effectiveness than would have been the case if the claim had been timely made and suit timely brought, or, even if suit had not been timely brought, a claim had been timely made and pressed. We find no abuse of discretion on the part of the district judge in dismissing the libel. On the contrary, we find that in dismissing it, the district judge exercised a wise and informed discretion. The order dismissing the libel is, therefore, affirmed. . Morales v. Moore McCormack, 109 F.Supp. 585. . Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 13, 96 L.Ed. 31. . Redman v. United States, 2 Cir., 176 F.2d 718; Kane v. Union of Soviet Soceialist Republics, D.C., 89 F.Supp. 435; The Sydfold, 2 Cir., 86 F.2d 611." }, { "docid": "17365802", "title": "", "text": "a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief.” The facts alleged are in my view insufficient to excuse the delay in this case. They come to little more than that libelant was injured, that he has 'been out of work for a long time, that he received treatment, that when he stopped receiving compensation he needed more money and he therefore retained counsel and instituted this action against respondents. There is no fact alleged indicating that he was unable to retain counsel at an earlier date. With respect to the question of libelant’s knowledge of his rights, it would appear that even erroneous advice of counsel or neglect by counsel would not be enough to excuse delay in instituting action. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551. I need not, however, go so far. Libelant was unusually careful not to allege that he was ignorant of his right to sue these respondents for his injuries. As the sentence which I have quoted above indicates, he’merely alleged that on June 28, 1951, he did not know what a third party case was and that he was not on that date at the specified conference advised of his right to sue the vessel. The fact that he was not then advised of his rights against the ship was unimportant in view of the absence of any claim of ignorance of his rights against the owner and general agent and the demonstrated ease of getting personal jurisdiction over them. If these facts are sufficient to excuse delay in instituting suit, then I should think it would go far to do away with the defense of laches in personal injury actions. With respect to the question of prejudice to respondents resulting from the delay, I take the rule in this circuit to he that detriment to respondent is presumed from libelant’s delay unless the contrary is shown and the burden is upon libelant to" }, { "docid": "12837361", "title": "", "text": "When the delay is apparent on the face of the pleading, it is incumbent upon the libellant to plead and prove facts negativing laches or tolling the statute of limitations. Redman v. United States, 2 Cir., 176 F.2d 713; The Sydfold, 2 Cir., 86 F.2d 611; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. Detriment to the adverse party may be presumed from delay shown on the face of the pleading in the absence of proof to the contrary. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; McChristian v. Lykes Bros., D.C., 94 F.Supp. 149. No request has- been made for leave to amend the libel, and-no suggestion has been advanced with respect to the .cause of delay. Aside from the possible application of the- Virginia “borrowing statute”, Sec. 8-23, Code of Virginia 1950, the ordinary period for the statute of limitations would be five years assuming, of course, the execution of a written agreement of employment. Applying the full equivalent of the statute of limitations, the action is clearly barred. If libellant purports to rely upon any exception contained in the law of Honduras (the flag of the vessel), it is incumbent upon libellant to prove the same for the purpose of the hearing on the question of laches. Proctors for respondents will prepare a final decree sustaining the plea of laches and dismissing the libel. After presentation to proctors for libellant for the- purpose of inspection, the proposed decree shall, be submitted to the Court for entry." } ]

[ { "docid": "22696025", "title": "", "text": "274 U.S. 99, 102, 103; Brown v. Helvering, 291 U.S. 193, 199; Rouss v. Bowers, 30 F. (2d) 628, 629. That is the question here. It is not altered by the fact that the claim of loss relates to an item of gross income which had accrued in the same year. Section 234 (a) (5) of the Revenue Act of 1918 provided for the deduction of worthless debts, in computing net income, as follows: — “ Debts ascertained to be worthless and charged off within the taxable year.” Under this provision, the taxpayer could not establish a right to the deduction simply by charging off the debt. It must be ascertained to be worthless within the taxable year. In this instance, in 1920, the debt was in suspense by reason of the bankruptcy of the debtor but it was not a total loss. What eventually might be recovered upon it was uncertain, but recovery to some extent was reasonably to be expected. The receiver continued the business and substantial amounts were subsequently realized for the creditors. In this view, the Board of Tax Appeals decided that the petitioner did not sustain a loss in 1920 “ equal to the total amount of the debt ” and hence that the entire debt was not deductible in that year. The question, then, is whether petitioner was entitled to a deduction in 1920 for the portion of the debt which ultimately — on the winding up in bankruptcy — proved to be uncollectible. Such a deduction of a part of the debt, the Government contends and the Circuit Court of Appeals held, the Act of 1918 did not authorize. The Government points to the literal meaning of the words of the statute, to the established administrative construction, and to the action of the Congress in recognition of that construction. “Worthless,” says the Government, means destitute of worth, of no value or use. This was the interpretation of the statute by the Treasury Department. Article 151 of Regulations 45 (made applicable to corporations by Article 561) provided that “An account merely written down” is" } ]

[ { "docid": "15065925", "title": "", "text": "the Bank’s business circumstances, the nature of its outstanding loans, its loan policy, or anticipated future losses, except to the extent that the Bank is a member of that District. * * * (4) “ * * * The [evidence] here does not support a finding of present or anticipated future losses which establish the insufficiency of the allowed additions to reserves or the inadequacy of the accumulated reserve * * The district court concluded “[t]he [plaintiff] Bank has not met its heavy burden of showing that the Commissioner’s determinations in question here are unreasonable or arbitrary.” A review of the stipulated facts discloses that plaintiff Bank moved to its downtown location in 1947. The average percentage of losses to total loans was greater for the sixteen year period from 1932 through 1947 than it was during the six year period from 1948 through 1953 after it moved; (This supports the district court’s first finding of fact.) that the loss experience of the two comparable downtown Milwaukee banks showed a greater loss percentage than those of the plaintiff Bank for the 1930’s and for some years of the early 1940’s; that the two comparable downtown banks had a difference in average loss ratio themselves for the period of 1938 through 1947. One of these banks had an average loss ratio for years 1940 through 1947 which evidently indicated that there was an excess of bad debt collections over bad debts charged off, in other words there was an average gain ratio instead of an average loss ratio; that one of the comparable downtown banks, which was organized in 1929 used the Seventh Federal Reserve District loss ratio for the years 1928 and 1929, and its own loss ratio for the years that it was in existence. The other comparable bank was in existence in 1928 and used its actual loss ratio of bad debts to loans as its loss ratio during these years. One of these banks sustained heavy losses shortly after its organization in 1929; (The foregoing facts support the district court’s second finding of fact.) that the plaintiff" }, { "docid": "4523076", "title": "", "text": "in the hands of the transferor * * * decreased in the amount of loss recognized to the transferor upon such transfer under the law applicable to the year in which the transfer was made. * * # a Respondent contends that “the loss occurred at the time of the transfer and as a consequence thereof”. Petitioner contends that the loss, if any, did not occur when the loans were charged off “because the accounts were merely transferred from one ledger to another because of the rigid requirements of the banking laws”. Petitioner points out that under the practice a bank is permitted to keep a separate set of books regarding the value of assets charged off under stringent banking rules. We think that both these contentions are erroneous. Here, the assets had been charged off and deducted from income by the smaller banks. Such deductions are permitted by statute only if the debts were “ascertained to be worthless and charged off within the taxable year”. Section 23, sub. k, 26 U.S.C.A. Int.Rev.Acts, page 673. We must presume that petitioner obeyed the law, and, therefore, the losses were sustained prior to; the transfer to petitioner] Having been charged off, such loans had no cost basis at all. The smaller banks had recouped their cost or capital from income. The loans were no longer a capital asset but represented income. By virtue of § 113(a) (7), the basis of the loans in petitioner’s hands was the same as the basis of the loans in the hands of the smaller banks, which was zero. Fairbanks Court Wholesale Groc. Co. v. Commissioner of Int. Rev., 7 Cir., 84 F.2d 18. Second. With regard to the deductions claimed by petitioner in 1934, the Board found that the loans for which the deductions were made “had been charged off in that year, but * * * had not been ascertained to be worthless in 1933”. Such finding is not challenged. The statute permits a deduction for bad debts only if “ascertained to be worthless and charged off within the taxable year”. The charge-off and the" }, { "docid": "15065922", "title": "", "text": "the taxable year, determines the maximum permissible addition to the reserve for the year. ****** “.03 Consistent with the provisions of Mimeograph 6209 which permit newly organized banks and banks without sufficient years’ experience of their own to set up a reserve commensurate with the average experience of other similar banks with respect to the same type of loans, preferably in the same locality, banks which select a 20-year period under (.01) above which extends back into years for which they have no experience of their own will be permitted to fill in such years with similar comparable data. * * * ” The above rule was further clarified in 1957 by Revenue Ruling 57-350, 1957-2 •Cum.Bull. 144, the pertinent part being: “For that portion of the 20-year period selected during which the bank was in existence, it is required to use its own experience. For that portion of the 20-year period selected during which the bank was not in existence, section 4.03 of Revenue Ruling 54-148, supra, permits a bank to fill in such years with the bad debt experience of other similar banks with respect the same type of loans, preferably in the same locali■£y *X’ ■X The plaintiff Bank was organized in 1931 and with the consent of the Commissioner in 1945 changed from a specific bad debt deduction to a reserve account for bad debts in computing income tax. In 1947 the plaintiff Bank moved to a downtown location in Milwaukee. The real controversy arises because the Commissioner disallowed deductions from income tax to the extent that these deductions for the reserve account for bad debts were based upon substituted loss ratio for the years the Bank was in actual existence. The plaintiff Bank in its return for 1953 determined its average loss ratio for the twenty year period ending with its taxable year, by substituting the bad debt average percentage to total losses of member banks of the Seventh Federal Reserve District, of which it was a member, for the years 1934, 1935, and 1936 instead of its own percentages which were smaller. For the" }, { "docid": "7911660", "title": "", "text": "in so far as is material provides: . “Sec. [§] 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: * * * * * * “(f) Losses by corporations. In the case of a corporation, losses sustained during the taxable year and not compensated for by insurance or otherwise. ****** “(j) Bad debts. Debts ascertained to be worthless and charged off within the taxable year * * * In its return for 1930 appellant deducted as a total loss an alleged deposit of $200,-000 in the Bank of Tennessee. The Commissioner disallowed the deduction upon the ground that the loss could not have been definitely ascertained until 1931 and made a deficiency assessment in the sum of $24,-062.44, which appellant paid with interest on February 25, 1933. On March 28, 1933, as a pre-requisite to its suit for recovery (U.S.C. Title 26, §§ 1672-1673, 26 U.S.C.A. §§ 1672-1673) it filed its refund claim, the basis thereof being “that the taxpayer had on deposit in the Bank of Tennessee, Nashville, Tenn., the sum of $200,000.00, which Bank closed its doors and ceased to do business on November 5, 1930 * * * ; that the sum of $200,000.00 was charged off its books and deducted in its income tax return as a loss or bad debt ascertained in 1930, which deduction was disallowed, by the Commissioner. * * * ” The claim was rejected. The primary question is, whether this item of $200,000 represented a bad debt. Sec. 23(j) supra. In 1926 Caldwell & Company, a Tennessee corporation, brokers and investment bankers (herein called Caldwell), acquired the capital stock of the Kentucky Rock Asphalt Company, a Kentucky corporation, and reorganized it by creating appellant, á Delaware corporation of the same name! Caldwell through voting trustees of its selection controlled appellant. It also owned and controlled the Bank of Tennessee, which it operated for its own convenience. Caldwell and the Bank had the same officers, directors and place of business. At the instance of Caldwell, appellant issued $1,500,000 in bonds. To make this issue attractive, appellant" }, { "docid": "15109877", "title": "", "text": "but we do believe that this court may permissibly indulge in an inference that Congress was familiar with the opinion in the Liberty Bank Case, supra, and that such an inference coupled with the history of the legislation dealing with deductions for bad debts is some indication that Congress intended a charge off as a necessary condition precedent to the allowance of a deduction for partially worthless debts under the Revenue Act of 1921 and those following: We also think that the language as found in section 234(a) (5) prior to the 1932 amendment, 26 U.S.C.A. § 23(J) note, that “when satisfied that a debt is recoverable only in part, the Commissioner may al low such debt to be charged off in part” was intended to merely make explicit what is implicit in all allowances for deductions, namely, that all deductions are subject to the audit of the Commissioner. See, Brown, The Time for Taking Deductions for Losses and Bad Debts for Income Tax Purposes, 84 Univ.Pa.L.Rev., 51, 61. It may have been that Congress in using this language intended to give the Commissioner a broader discretion than he has in dealing with totally worthless debts, but this it is unnecessary for us to now decide. We do decide that under section 234 (a) (5) of the Revenue Act of 1926 a charge off during the taxable year is a necessary condition precedent to the allowance of a deduction for bad debts, both total and partial, and that since it is admitted that appellant made no such charge off, it is not entitled to the claimed deduction for the year 1927, even though it be assumed that the bonds held by it were ascertained to be partially worthless in that year. By the same token, the interest accrued on the books of appellant for the year 1926 and not charged off or written down in 1927 cannot be a basis for a deduction. Whether the uncollected interest be considered as a totally worthless debt or as a part of the principal and thus included in the sum of the partial" }, { "docid": "9407956", "title": "", "text": "to be set aside on these smaller accounts. Flat two percent reserves were set aside for all other 90-day-old accounts and all accounts between 30 and 90 days past due. A one percent reserve was established for all accounts less than 30 days old. These computations resulted in a total addition to the bad debt reserve, i. e., a total deduction from income, of $135,150. The Commissioner, however, recomputed what he considered to be “a reasonable addition” to the reserve, by applying the six-year moving average, or Black Motor formula to the 1965 accounts receivable. He divided the total of accounts written off by Thor during the tax year in question and the five preceding years by the total of year-end receivables for all six years. The resulting percentage was then applied to the 1965 year-end receivables, and the $74,-790.80 by which Thor’s claimed deduction exceeded the product of this calculation was disallowed. Reasonable additions to a reserve for bad debts may be deducted pursuant to § 166(c) of the Internal Revenue Code of 1954. As the Code makes clear, the Commissioner is to exercise his discretion regarding the reasonableness of any particular addition. In order to overturn the Commissioner's disallowance, therefore, the taxpayer must show that the Commissioner has abused his discretion. Calavo, Inc. v. Commissioner, 304 F.2d 650, 653-654 (9th Cir. 1962). This is a “heavy burden.” Consolidated-Hammer Dry Plate & Film Co. v. Commissioner, 317 F.2d 829, 834 (7th Cir. 1963). As we have stated before, the issue thus presented “is whether the Commissioner’s view is reasonable.” The First National Bank of Chicago v. Commissioner, 546 F.2d 759, 761 (7th Cir. 1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2176, 53 L.Ed.2d 225 (1977); S. W. Coe & Co. v. Dallman, 216 F.2d 566, 569 (7th Cir. 1954). If it is, the inquiry is ended. We agree with the Tax Court that the Commissioner’s method of determining the reserve for bad debts, which gave preference to experience over estimates, was reasonable. AFFIRMED. . Because the extensive write-downs taken for 1964, see text, infra, resulted in an operating" }, { "docid": "15065923", "title": "", "text": "years with the bad debt experience of other similar banks with respect the same type of loans, preferably in the same locali■£y *X’ ■X The plaintiff Bank was organized in 1931 and with the consent of the Commissioner in 1945 changed from a specific bad debt deduction to a reserve account for bad debts in computing income tax. In 1947 the plaintiff Bank moved to a downtown location in Milwaukee. The real controversy arises because the Commissioner disallowed deductions from income tax to the extent that these deductions for the reserve account for bad debts were based upon substituted loss ratio for the years the Bank was in actual existence. The plaintiff Bank in its return for 1953 determined its average loss ratio for the twenty year period ending with its taxable year, by substituting the bad debt average percentage to total losses of member banks of the Seventh Federal Reserve District, of which it was a member, for the years 1934, 1935, and 1936 instead of its own percentages which were smaller. For the years 1954 and 1955 the plaintiff Bank used its average loss ratio for determining additions to its reserve account for bad debts the twenty year period from 1928 through 1947 except it substituted the Seventh Federal Reserve District Banks’ average loss ratio for the years 1928 through 1936. The parties stipulated a large portion of the facts which will not be repeated here since these facts are stated in the opinion of the district court 176 F.Supp. 64, 69. The district court also heard testimony and made the following findings of fact: (1) “The evidence does not show that the Bank’s loss experience has been or will be materially altered as a result of its move to a downtown location. * * * (2) “The loss experience of two comparable downtown Milwaukee banks * * * does not support a finding that plaintiff Bank has a reasonable expectation of substantially increased bad debt losses.” (3) The evidence did not show “that the borrowed experience [of the Seventh Federal Reserve District Banks] has any relevancy to" }, { "docid": "15730701", "title": "", "text": "the bankrupt sustained a loss of $24,-500 during that year by reason of the insolvency of the Franklin Trust Company, of the stock of which institution the bankrupt owns four hundred shares. The collector contended that the loss was sustained in the year 1931. Second, for the year 1933, the referee allowed a deduction of $22,569.05 for bad debts. The collector admitted that these bad debts had been ascertained to be worthless in that year, but contended that they had not been charged off on the books of the bankrupt and therefore were not deductible. The referee agreed that the deduction would not have been available to the taxpayer himself, but nevertheless allowed it under the general power vested in the court by section 64a of the Bankruptcy Act to ascertain the amount of taxes legally due and owing, holding that the trustee in bankruptcy was not affected by the bankrupt taxpayer’s failure to charge off the debts 'during the year for which they were claimed as deductions. I. As to the Franklin Trust Company loss the referee’s findings are as follows: “The Franklin Trust Co. closed its doors on October 1, 1931, on an order of the State Banking Department, not because of insolvency but because it was deemed unsafe to be permitted to continue in business. Liquidation of the Bank’s assets was ordered on December 31, 1931. The inventory and appraisement of the bank’s assets, which was filed June 20, 1932, showed book values of $38,828,146.43, with liabilities of $16,-118,514.36. The liquidation value of the book assets as shown in the inventory and appraisement was $19,236,439.74. The bank had paid a dividend to its stockholders on October 1, 1931, shortly before it was closed. The Government refused to allow depositors of this bank to deduct their deposit losses until 1932.” It also appears that in June, 1932, an appraisement was made by official appraisers which fixed the liquidation value of the assets of the bank as of that date at a figure far below the assets and conclusively established insolvency. Distributions were made to depositors thereafter, but none" }, { "docid": "15065919", "title": "", "text": "command that the additions be ‘reasonable’.” The Internal Revenue Code of 1939 provided: “§ 23. Deductions from gross income. In computing net income there shall be allowed as deductions: * * * “(k) Bad Debts. “(1) General rule. Debts which become worthless within the taxable year; or (in the discretion of the Commissioner) a reasonable addition to a reserve for bad debts; * * 26 U.S.C.A. § 23. and the Internal Revenue Code of 1954 provided: “§ 166. Bad Debts. “(a) General rule.— “(1) Wholly worthless debt.— There shall be allowed as a deduction any debt which becomes worthless within the taxable year. ****** “(c)-Reserve for bad debts. — In lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the Secretary or his delegate) a deduction for a reasonable addition to a reserve for bad debts.” 26 U.S.C.A. § 166. The measure of such reserve and the amounts to be allowed as deductions for 1953 is set forth in Mimeograph 6209, 1947-2 Cum.Bull. 26 as follows: “ * * * 2. In determining a reasonable annual addition to a reserve for bad debts by a bank it is believed to be fair and sufficiently accurate to resort to the average annual bad-debt loss of the bank over a period of 20 years, to include the taxable year, as constituting a representative period in the bank’s history and to accept the equivalent percentage of presently outstanding loans as indicative of the probable annual accruing loss. * * * . * 44 * * * * “5. A newly organized bank or a bank without sufficient years’ experience for computing an average as provided for above will be permitted to set up a reserve commensurate with the average experience of other similar banks with respect to the same type of loans, preferably in the same locality, subject to adjustment after a period of years when the bank’s own experience is established. “6. Bad debt losses sustained are to be charged to the reserve, and recoveries made of specific debts which have been previously charged against the" }, { "docid": "21499890", "title": "", "text": "CLARK, Circuit Judge. This case was tried in the court below under a misunderstanding. Not unnaturally, what we deem to be error occurred. Counsel for the taxpayer-appellee very fairly concedes and accounts for this misapprehension of the learned trial judge in the following language in his brief: “It is conceded that such finding of a charge-off is contrary to the Agreed Statement of Facts (R. p. 18) in which it was stated that the taxpayer had failed to charge-off on its Records any part of the loss sustained by it on the Bradford Bank debt. It is possible that such fact finding was arrived at by the lower Court from the fact that the Board of Directors of the plaintiff on December 23rd, 1930 by resolution resolved to comply with the direction of the Secretary of Banking (R. 14i, 14j) relating to the writing off of the Bradford bank debt. However, it is admitted that a charge-off was not formally made on the books of the plaintiff and that a finding to the contrary is in opposition to the Agreed Statement of Facts. Moreover suit was instituted herein upon the theory that the plaintiff had sustained a partial loss on the Bradford Bank debt in an amount sufficient to eliminate any taxable income for the year 1930 and that the Commissioner had abused his discretion in disallowing such a claim. Accordingly it is submitted that inasmuch as the Court below made pertinent findings of fact supported by the evidence relating to the issue joined in the pleadings, which findings of fact are sufficient to sustain the judgment herein, the aforesaid additional finding of fact now discussed is unrelated to. the issue joined by the parties hereto and is at most harmless error and should not affect the general finding in favor of the plaintiff”. Appellee’s brief, pp. 17, 18. The confusion arises from the somewhat misleading similarity between two cognate provisions of the Revenue Act of 1928, § 23 (j), 26 U.S.C.A. § 23 (j) note, p. 130. Both cover the general subject of deductions for so-called bad debts. We" }, { "docid": "3011522", "title": "", "text": "July 1 to December 31, 1923, and during 1924 the petitioner paid certain sums on account of the obligations of the old company which it had assumed and agreed to pay as a part of the consideration for the business and assets of the old company. In its tax returns for 1923 and 1924 the petitioner claimed a deduction of these payments as ordinary and necessary expenses of its business. The commissioner disallowed this claim, holding that these payments were a part of the price of the assets of the old company and were therefore capital items. The old company, prior to its dissolution, had for several years made it a practice to set up on its hooks a reserve for bad debts in an amount equal to one per cent, of its sales; but, in making its tax returns, it claimed its actual bad debts, ascertained to be worthless during the taxable year, as a deduction. The petitioner,- after its organization, also set up on its books a bad debt reserve equal to one per cent, of its sales; but in its first income tax return for the six months of its existence ending December 31, 1923, it claimed and received as a deduction the additions made to its reserve for that period. The additions to its reserve amounted to $3,338.75, while the petitioner’s books showed but $52.30 of actual bad debts. Since 1923 the petitioner has continued to set up a bad debt reserve equal to one per cent, of its sales, but it claimed a deduction in its tax return for 1924 of the actual bad debts ascertained to be worthless and charged off during the year. The additions to the bad debt reserve in 1924 amounted to $8,434.75, while its bad debts in 1924 and which it now claims should be deducted have been ascertained to be $20,-895.21. The Board of Tax Appeals held that the petitioner was a distinct entity from the old corporation; that the losses of the old corporation in 1922 and 1923 were not the losses of the petitioner under section 206" }, { "docid": "15065924", "title": "", "text": "years 1954 and 1955 the plaintiff Bank used its average loss ratio for determining additions to its reserve account for bad debts the twenty year period from 1928 through 1947 except it substituted the Seventh Federal Reserve District Banks’ average loss ratio for the years 1928 through 1936. The parties stipulated a large portion of the facts which will not be repeated here since these facts are stated in the opinion of the district court 176 F.Supp. 64, 69. The district court also heard testimony and made the following findings of fact: (1) “The evidence does not show that the Bank’s loss experience has been or will be materially altered as a result of its move to a downtown location. * * * (2) “The loss experience of two comparable downtown Milwaukee banks * * * does not support a finding that plaintiff Bank has a reasonable expectation of substantially increased bad debt losses.” (3) The evidence did not show “that the borrowed experience [of the Seventh Federal Reserve District Banks] has any relevancy to the Bank’s business circumstances, the nature of its outstanding loans, its loan policy, or anticipated future losses, except to the extent that the Bank is a member of that District. * * * (4) “ * * * The [evidence] here does not support a finding of present or anticipated future losses which establish the insufficiency of the allowed additions to reserves or the inadequacy of the accumulated reserve * * The district court concluded “[t]he [plaintiff] Bank has not met its heavy burden of showing that the Commissioner’s determinations in question here are unreasonable or arbitrary.” A review of the stipulated facts discloses that plaintiff Bank moved to its downtown location in 1947. The average percentage of losses to total loans was greater for the sixteen year period from 1932 through 1947 than it was during the six year period from 1948 through 1953 after it moved; (This supports the district court’s first finding of fact.) that the loss experience of the two comparable downtown Milwaukee banks showed a greater loss percentage than those" }, { "docid": "3011521", "title": "", "text": "BINGHAM, Circuit Judge. This is a petition to review a decision of the Board of Tax Appeals, rendered March 30, 1931, redetermining a deficiency in the petitioner’s income tax for the year 1924 in the sum of $1,880.74. The petitioner, the Athol Manufacturing Company, is a Massachusetts corporation, organized June 28,1923. It was organized to take over and did take over the business' and assets of another Massachusetts corporation of the same name. In its agreement for the purchase and taking over of the business and assets of the earlier corporation, the petitioner, as a part of the consideration therefor, assumed and agreed to pay all the debts and obligations of every kind of the other corporation. During the taxable year 1922, the old company sustained a net loss in excess of $100,000; and during the period of its operation from January 1 to June 31, 1923, it sustained a net loss of $425,979.24. In its tax return for 1924, the petitioner claimed a deduction of these sums as losses, which the commissioner disallowed. From July 1 to December 31, 1923, and during 1924 the petitioner paid certain sums on account of the obligations of the old company which it had assumed and agreed to pay as a part of the consideration for the business and assets of the old company. In its tax returns for 1923 and 1924 the petitioner claimed a deduction of these payments as ordinary and necessary expenses of its business. The commissioner disallowed this claim, holding that these payments were a part of the price of the assets of the old company and were therefore capital items. The old company, prior to its dissolution, had for several years made it a practice to set up on its hooks a reserve for bad debts in an amount equal to one per cent, of its sales; but, in making its tax returns, it claimed its actual bad debts, ascertained to be worthless during the taxable year, as a deduction. The petitioner,- after its organization, also set up on its books a bad debt reserve equal to one" }, { "docid": "18918880", "title": "", "text": "the two Courts of Appeals which have reviewed the issue have not concluded otherwise. Pacific First Fed. Sav. Bank v. Commissioner, 961 F.2d 800 (9th Cir. 1992), revg. and remanding 94 T.C. 101 (1990); Peoples Fed. Sav. & Loan Association v. Commissioner, supra. Indeed, in adopting the 1964 regulations, the Treasury expressly concluded the ordering rule was correct. The transmittal memorandum to Assistant Secretary Stanley Surrey stated: Existing section 593, like old section 593, does not provide that taxable income should be computed without regard to the net operating loss deduction attributable to a net operating loss carryback. However, this deduction is not in existence at the time the taxpayer determines the amount of its addition to bad debt reserves. A revenue ruling issued in 1958 held that the taxable income limit of old section 593 would be computed with regard to net operating loss carrybacks. This result seems correct and is explicitly set forth both in the notice of proposed rule making and in the proposed Treasury decision. Since section 593 provides that the amount of the bad debt reserve deduction shall be “the amount determined by the taxpayer to be a reasonable addition to the reserve”, but not to exceed 60 percent of taxable income, there would seem to be no sufficient reason to reverse the taxpayer’s decision by reason of subsequent losses. [Transmittal Memorandum from Mr. Klayman to Mr. Surrey, Apr. 29, 1964.] Accordingly, the ordering rule contained in the 1964 regulations is one permissible interpretation of section 593. It appears that, in the 1964 regulations, the Treasury adopted a rule that was designed to be consistent with the rules generally applicable to calculating the deduction for addition to bad debt reserve, which held that a reserve addition reasonable at the time it was calculated was not to be modified on account of subsequent events. Georgia Fed. Bank v. Commissioner, 98 T.C. 105, 114 (1992), on appeal (11th Cir., Nov. 3 1992), and cases cited therein. In the 1978 regulations, the Treasury shifted emphasis, attempting to equalize the tax treatment of taxpayers reporting stable incomes with that" }, { "docid": "2696481", "title": "", "text": "and growing the cotton crop. No doubt they paid tax on the increased gain. Nowhere in the Code do we find an intent that gains of the stockholders were to be attributed to the corporation, much less that they were to be treated as ordinary income to the corporation. The corporation is to be taxed only on its own income. (Cf. Family Record Plan, Inc. v. Commissioner, supra, at 210 of 309 F.2d) Here again, the cases on which the Commissioner relies do not support him. Three of them (Citizens Fed.Sav. & Loan Ass’n v. United States, Ct.Cl., 1961, 290 F.2d 932; West Seattle Nat’l Bank v. Commissioner, 9 Cir., 1961, 288 F.2d 47; and Commissioner of Internal Revenue v. First State Bank, 5 Cir., 1948; 168 F.2d 1004, 7 A.L.R.2d 738) involve deduction •of bad debt reserves or write-offs. These •differ from the expenses here involved, which are based upon out-of-pocket payments or fully incurred liabilities to third persons, whereas the reserves are based upon expectations rather than actual losses. In the case of bad debt reserves, the recovery of the deduction can fairly be said to occur at the time when the debts regain their full value, but in the ease of actual expenses, the recovery requires that the taxpayer shall have received or become entitled to receive money or property equal to the amount previously spent and deducted. Here, the taxpayer, as we have already pointed out, received nothing. Section 446(b) was not relied upon in any of them. There is a special section (§ 111) relating to bad debts, which was cited in each of them, and includes a statutory “tax benefit” rule. No similar provision applies here. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, seems to us even less in point. It and its companion cases involved actual recoveries, in later years, of losses taken in earlier years, on sales of stock. We do not see any theory on which it can be fairly said that the old corporation has recovered the expenses which it deducted. The result in" }, { "docid": "3011523", "title": "", "text": "per cent, of its sales; but in its first income tax return for the six months of its existence ending December 31, 1923, it claimed and received as a deduction the additions made to its reserve for that period. The additions to its reserve amounted to $3,338.75, while the petitioner’s books showed but $52.30 of actual bad debts. Since 1923 the petitioner has continued to set up a bad debt reserve equal to one per cent, of its sales, but it claimed a deduction in its tax return for 1924 of the actual bad debts ascertained to be worthless and charged off during the year. The additions to the bad debt reserve in 1924 amounted to $8,434.75, while its bad debts in 1924 and which it now claims should be deducted have been ascertained to be $20,-895.21. The Board of Tax Appeals held that the petitioner was a distinct entity from the old corporation; that the losses of the old corporation in 1922 and 1923 were not the losses of the petitioner under section 206 (b) (e) and (f) of the Revenue Aet of' 1924 (26 USCA § 937 and note), and such losses could not be deducted in the ascertainment of its net income. As to the sums paid out by the petitioner during the six months of its existence in 1923 and in 1924 upon the obligations of the old company, which it had assumed and agreed to pay, the Board of Tax Appeals held that these payments were a part of the consideration for the purchase of the assets of the old company; that they were part of the cost to the petitioner of those assets and constituted a capital, not a business, expense. And, as to the remaining matter, it held that the petitioner, in its tax return for 1923, having deducted the sum of $3,338.75, the amount of the additions to its bad debt reserve for that period, and claimed that as a deduction in the ascertainment of its taxable income, instead of claiming a deduction on account of its bad debts amounting to $52.30," }, { "docid": "23052105", "title": "", "text": "the transaction in 1932 was considered by the parties as constituting a payment of respondent’s.,liability under the guaranty, and that this payment is a fact found by the Board of Tax Appeals and is not open to review. But the findings of the Board disclose the entire transaction, and its legal effect in the application of § 23 (e) of the Revenue Act of 1932, as to the deduction of losses sustained during the taxable year, was reviewable by the Circuit Court of Appeals. Its decision on that point is reviewable here. Both the Commissioner and the Board of Tax Appeals relied upon our decision in Eckert v. Burnet, supra. In that case, the taxpayer’s return was on the cash basis, and the question was as to a claim óf deduction for the •year 1925. The.taxpayer and his partner were joint endorsers of notes issued by a corporation they had formed. In 1925, ’in settlement of their liability for an ascertained amount, they made a joint note for the amount due to the bank that held the corporation’s paper, “received the old notes, marked paid, and destroyed them.” We affirmed the ruling that the deduction should not be allowed. The court below considered that decision as definite •authority only for the holding that a loss of the sort set forth was not deductible under the “bad debt” provision of the statute. That indeed was stated in the opinion as the taxpayer’s claim.- But the taxpayer had also presented here as an alternative ground the theory of a loss sustained during the taxable year, a ground which the Board of Tax Appeals had considered and held to be untenable. 17 B. T. A. 263, 265, 266. And the Government argued both questions. The Government did not contend that the taxpayer might not at some time be entitled to a deduction “either on account of a bad debt or for a business loss”; the “sole question in dispute was whether he was'entitled to the deduction in 1925, the year in which his note was given, or in the later year in which" }, { "docid": "3045850", "title": "", "text": "for the taxable period because respondent, in an earlier period, suffered net losses in the conduct of its business which were in some measure attributable to expenditures made to produce the net income of the later period.’ ” There is nothing in the decision of the Circuit Court of Appeals of the Ninth Circuit in National Bank of Commerce v. Com’r, 9 Cir., 115 F.2d 875, to the contrary. That case involved a bank reorganization in which debts had been charged off as worthless prior to the reorganization. The holding was that the reorganized bank was liable for income tax on the recoveries on these worthless debts on the same basis as the bank that charged them off would have been if the reorganization had not occurred. It is nowhere suggested that recoveries should be added to income only in the event that a tax benefit had been received from the deduction. It should be noted that the view of the Board with respect to this question was originally in accord with that which we have expressed. The precise point was presented in Lake View Trust and Savings Bank v. Com’r, 27 B. T. A. 290, where the Board said: “The petitioner contends that the collections made in the taxable years before us, on the debts ascertained to be worthless, charged off on its books, and claimed and allowed as deductions from gross income of the earlier years, do not constitute taxable income. The argument is advanced that since the petitioner had net losses in the earlier years, it has received no benefit from the claimed deductions and that there was no detriment to the Government’s revenue thereby. In other words, the assertion is made that such debts, though ascertained to be worthless and actually charged off- on the taxpayer’s books in a particular year, should not be reflected in the computation of tax liability unless the deduction of the debt actually reduces the taxpayer’s taxable income. With this we can not agree. The deduction for bad debts is provided by statute and is predicated upon (a) the ascertainment of" }, { "docid": "15730704", "title": "", "text": "contemplate and the regulations (article 144) forbid the deduction of losses resulting from the mere fluctuation in value of property owned by the taxpayer. * * * But with equal cer- , tainty they do contemplate the deduction from gross income of losses, which are fixed by identifiable events.’ ” To say that stockholders of a bank which has been closed by order of the authorities and ordered liquidated do not sustain a loss upon their stock until some subsequent date when liquidation finally takes place, or until the official appraisement of the bank’s assets, seems to me to be losing touch with reality. It is just conceivable that cases might arise in which some realization could be had by the stockholders in the long future. As a practical matter, however, the business world never remotely considers that contingency. To all intents and purposes the stock of a bank becomes unsalable at any price when the bank is taken over and liquidation begins. The government’s position that the loss occurred in the year in which the bank was closed is in accordance with the general practice of the Department. There is no formal regulation, and it would not be controlling if there were, but it is certainly a sensible, practical rule and in accordance with actual facts. I therefore hold that the bankrupt’s loss in the Franklin Trust Company stock was sustained in the year 1931 and not in the year 1932. II. As to the bad debt claim: Early in 1934 Hoffman got into financial difficulties and attempted to negotiate with his creditors. Accountants were employed to investigate his financial condition. The accountant turned up, among other things, a list of debts amounting to $22,569.05, which, without going into details, had undoubtedly been ascertained to be worthless by the bankrupt during the year 1933. They had not, however, been charged off on his books. The bankrupt probably did not want to reduce his net worth for credit purposes. Th'e accountant physically charged off the debts upon the bankrupt’s books some time in 1934 — the trustee says about March" }, { "docid": "4523072", "title": "", "text": "9 A.L.R. 1570. Money' received 'from the conversion of capital represented by\" something other than money is not income within the meaning of the amendment, although a gain on the conversion is. When the • smaller banks made loans of their capital, the repayment of the money lent was not income to the banks, although the interest paid by the borrower for the use of the capital was. Such interest, less whatever deductions may be permitted by statute, is the amount upon which the tax is computed. However, when such a loan becomes worth less, the amount thereof is loss of capita!, but the income tax laws permit the bank to recoup its capital by deducting from the profits or income the amount of the loss. Thus the bank does not pay a tax on all its income, but on the amount of income less the loss on the worthless debt. The debt itself then loses its nature as capital, but represents that portion of the income- which was not taxed, and the capital is the money taken from the profits or income. If the loan, after being deducted from income, is paid, then the lender is receiving profit or income — otherwise the lender would double its capital on one transaction. In other words, the profits or income used to pay back the capital when the debt is charged off is represented by the worthless loan, so that when such loan is paid the profits are replaced. Such is the theory of the income tax laws, as shown by Article 191, Treasury Regulations 77, promulgated under the Revenue Act of 1932, which provides in part: “ * * * Any amount subsequently received on account of a bad debt or on account of a part of such debt previously charged off and allowed as a deduction for income-tax purposes, must be included in gross income for the taxable year in which received * * * ” Thus, if the recoveries in question had been made by the smaller batiks, they would of necessity been included in the returns as" } ]

[ { "docid": "6366284", "title": "", "text": "W e need not therefore consider whether to adhere to our own decision in the Wiegand or Tourtelot cases or to follow those of the courts of appeals (cf. American Coast Line v. Commissioner, 159 F. 2d 665, 668-669 (C. A. 2); Estate of William E. Edmonds, 16 T. C. 110, 117), for the present case is sharply distinguishable. Here the percentages of stock ownership did not remain the same. We have here “a change brought about by the issue of shares as a dividend whereby the proportional interest of the stockholder after the distribution was essentially different from his former interest.” Helvering v. Sprouse, 318 U. S. at 608. The theory of the Koshland case requires approval of the respondent’s position here. This dividend, paid out of corporate earnings and profits, was “income” to petitioner “within the meaning of the Sixteenth Amendment” as interpreted in the Koshland case, and is therefore taxable under section 115 (f) (1) of the Code, as construed by the Griffiths case. 3. Petitioner argues that the dividend of 193 shares of preferred on his preferred did not result in the receipt of any income because the distribution of a total of 872 preferred shares put an additional burden of $87,200 (in par value) on the common stock, and as the owner of some 71 per cent of the common the greater part of that burden fell upon him. Thus he contends that the transaction resulted in a loss to him rather than a gain. We think the contention is unsound. Petitioner misconceives the entire basis for the inclusion of corporate dividends in taxable income. The declaration and payment of a dividend is almost never an income producing event in the sense that the stockholder is enriched at that moment. To the extent that there is a distribution of corporate assets as a dividend such distribution frequently reduces the value of the stock. The point is that the stockholder is not taxed upon corporate earnings until there has been a distribution, and it is at that time that he must account tax-wise for those earnings," } ]

[ { "docid": "4851724", "title": "", "text": "share for the first preferred and $25 per share for the second preferred. It has been held that the preferred stock distributed by Helms Bakeries in 1936 was taxable income to the shareholders within the meaning of the Sixteenth Amendment and under section 115 (f). The corporation is being allowed a dividends paid credit equivalent to the fair market value of the stock at the time it was distributed. The respondent concedes that, if taxable as a dividend to the recipients, it should be included in their gross income at its fair market value at the time it was received by them rather than at par. This concession accords with our view of the law. The deficiency in this proceeding should therefore be recomputed, including in the income of Helms and his wife only the fair market value of the stock at the time it was received. Docket No. 102602. The issues in the proceeding of Helms, trustee, are: (a) Was taxable income realized in 1936 through distribution to the trustee of the first and second preferred stock of Helms Bakeries? and (b) did respondent err in failing to find there were three separate trusts —one for each of the three children — instead of one trust for the three of them? Issue (a) has already been discussed. For the reasons set out above it is held that the preferred stock was income for the taxable year to the extent of its fair market value at the time received. The answer to the remaining question may be found by ascertaining the intention of the settlors of the trust. Green v. Green, 23 Wall. (90 U. S.) 486. The instrument which they signed is the best evidence. It should be examined from its “four corners.” McGinley v. Commissioner, 80 Fed. (2d) 692; Huntington National Bank v. Commissioner, 90 Fed. (2d) 876. Evidence aliunde may be received to aid in the construction but not to contradict the plain and unambiguous language used. 65 C. J. 248. The only evidence offered or received in the instant proceeding bearing upon this issue was the" }, { "docid": "11330078", "title": "", "text": "the additional assessments, prosecuted their cases through the Tax Court. That court upheld the Commissioner’s position that the royalties were not deductible as expenses in the corporate taxpayer’s business and, in this view of the case, did not approve the deficiency levied against the two individuals. Apparently, this decision was based on the theory that the declaration of the dividend was a sham and that the stockholders were not. entitled to the royalties. The question presented upon the corporate tax is whether the court erred in deciding that the royalties paid by the corporation for use of the patent were not deductible under Section 23(a) of the Internal Revenue Code, 26 U.S.C.A. § 23(a), as ordinary and necessary expenses of the taxpayer’s business. The issue as to the two stockholders is whether the Tax Court erred in failing to determine the value of the patent at the time of its distribution as a dividend and in failing to approve deficits in their taxes for 1943 based on their receipt of the dividend. The taxpayers concede that the value of the dividend should have been determined and that they should have been charged with its value as income. The Commissioner’s position is that if this court should reverse the decision on the business expense of the corporate taxpayer, then the cases as to the individual taxpayers should be remanded for inclusion in their taxable income of the fair market value of the-patent in 1943, pursuant to Section 115(j) of the Internal Revenue Code, 26 U.S.C.A. § 115(j). It is perfectly obvious from the facts, related that on its face the transaction was legal and valid. The corporation was solvent; it had a right to declare a dividend and did so; thereby the stockholders received the patent as a dividend in kind. The assignment was not concealed but was filed of record with the Patent Office. In return, they licensed the corporation to sell the device upon payment of royalties. No other parties, were affected. No injury was inflicted upon any creditor or stockholder, but the entire transaction on its face was,," }, { "docid": "22232552", "title": "", "text": "(computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Sec. 115 (f) (1) is entitled “General Rule” and reads as follows: “A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall not be treated as a dividend to the extent that it does not constitute income to the shareholder within the meaning of the Sixteenth Amendment to the Constitution.” Sec. 115 (j) sets forth the formula for valuation of dividends other than cash dividends: “If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” April 29, 1936. See 80 Cong. Rec., p. 6367. The Koshland case was decided by this Court on May 18, 1936. Cf. the income tax of partners. Sec. 182 of the Internal Revenue Code provides: “In computing the net income of each partner, he shall include, whether or not distribution is made to him . . . (c) His distributive share of the ordinary net income or the ordinary net loss of the partnership, computed as provided in section 183 (b).” A partner is chargeable with his allocable share of the partnership earnings even where they could not be distributed to him by reason of local law. Heiner v. Mellon, 304 U. S. 271, 281: “The tax is thus imposed upon the partner’s proportionate share of the net income of the partnership, and the fact that it may not be currently distributable, whether by agreement of the parties or by operation of law, is not material.” As stated by Mr. Justice Brandéis in his dissent in Eisner v. Macomber, 252 U. S., p. 231: “The stockholder’s interest in the property of the corporation differs, not fundamentally but in" }, { "docid": "14357429", "title": "", "text": "to its shareholders shall be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” Petitioner contends, and the Board of Tax Appeals held in the Tar Products case, that the language of the regulation has reference only to the doctrine of constructive receipt, hence is limited in its applicability to taxpayers on the cash-disbursements basis. This contention was carefully con sidered by the Appellate Court in the Tar Products case, and it concluded that the language of the Act and regulation, identical from 1921 on down, never had made any distinctions as to the time when the dividend became income according to the method of bookkeeping used by the taxpayer, and that no reason appeared why it should be restricted as contended by the Commissioner. The court further went on to point out reasons why the treatment of dividends should be subject to a single rule regardless of the bookkeeping methods of the taxpayer. “It makes possible the checking of taxpayer’s returns against the corporation record of disbursements. It will prevent variations in the tax to be paid in those cases where dividends are paid in kind rather than in money and the value of the property fluctuates.” A further reason for the single rule is suggested by Tyler in the article referred to above (note 1). Under § 115(a) of the Act, a distribution, in order to be a taxable dividend rather than a return of capital, must be paid out of earnings and profits of the corporation. But the amount of earnings and profits available to pay a dividend has been determined as of the time of payment rather than the date of declaration. Mason v. Routzahn, 275 U.S. 175, 48 S.Ct. 50, 72 L.Ed. 223. Thus it might occur that a dividend declared December 15, 1944, payable January 31, 1945, to stockholders of record December 31, 1944, might be nontaxable to the accrual basis -stockholder because a return of capital, if there were no earnings in 1944 with which to pay the dividend, although it" }, { "docid": "3134574", "title": "", "text": "In that case the shareholder, whose bookkeeping was on an accrual basis, accrued a dividend declared in December 1922 but not payable until 1923 in his accounts for 1922 and reported the dividend in his income tax return for 1922. This was upheld by the Board. The minority opinion of the Board in this litigation attempts to distinguish the Campbell case suggesting a dif ference between what a taxpayer may do and what he must do. We think, however, that the important thing about the Campbell decision was that the Commissioner announced his non-acquiescence in it at the time and has persisted therein ever since. The taxpayer’s strong argument is the explicit and unqualified statement in the Regulations both under the 1936 Act, applicable here, and the Acts before and since. Article 115-1 of Regulations 94 deals with the 1936 Act and provides: “A taxable distribution made by a corporation to its shareholders shall be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” This is part of the Regulation under the section in the Revenue Act which deals with distributions by corporations. Argument for the shareholder points out the use of identical language beginning with Article 1541 of Regulations 62 down to Section 19.115-1 of Regulations 103. The language neither now nor heretofore has made distinctions as to the time when the dividend is income according to the method of bookkeeping by the taxpayer. If literally applied to this case it obviously makes the time when the dividend was income not earlier than January 2, 1937. The argument by appellee that this is to be limited to shareholders on the cash receipts basis does not change the fact that the language used under Article 115 is general, not restricted, and that there is nothing in the context to indicate any restriction not expressed. We do not find in the legislative history of the sections of the Revenue Acts and the Regulations covering them anything which strengthens the position of either side. We do see reasons why the" }, { "docid": "16884701", "title": "", "text": "included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” This section in express terms requires that the decision of the Tax Court be reversed. Neither the Tax Court nor the respondent discussed § 115 (j) of the Revenue Act of 1936 nor the applicable decisions. Under the rulings of the Supreme Court a property dividend becomes income to the shareholder at the time he receives it. Peabody v. Eisner, 247 U.S. 347, 38 S.Ct. 546, 62 L.Ed. 1152; Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149. The respondent contends that the decision must be affirmed because the appreciation in value of the stock and bonds of Alabama Mills, Inc., after purchase by the corporation was unrealized and was not an addition to the corporate earnings or profits. However, the taxpayer here is not the corporation, but a member of the partnership which, as stockholder, received the stocks and bonds. Hence the fact that the corporation’s earnings and profits were not increased by the appreciation in value (Cf. LaBelle Iron Works v. United States, 256 U.S. 377, 41 S.Ct. 528, 65 L.Ed. 998) and that no taxable gain resulted to the corporation (Cf. General Utilities & Operating Co. v. Helvering, Commissioner, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154), is not controlling. Nor are we helped in decision by the legislative history relied on by respondent, which he contends demonstrates that Congress considered that the mere increment of value not realized by sale or disposition of property does not increase earnings and profits. This is not the case of a distribution by a corporation of its own stock, which does not diminish the corporation’s assets nor constitute taxable income. Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570. It is the case of distribution by a corporation of stock of another corporation, and this, if it represents earnings or surplus, is taxable as a dividend. Peabody v. Eisner, supra; Rockefeller v. United States, 257 U.S. 176, 42" }, { "docid": "13023795", "title": "", "text": "earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution Was made. * * * (b) Source of Distributions. — For the purposes of this chapter every distribution is made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits. Any earnings or profits accumulated, or increase in value of property accrued, before March 1, 1913, may be distributed exempt from tax, after the earnings and profits accumulated after February 28, 1913, have been distributed, but any such tax-free distribution shall be applied against and reduce the adjusted basis of the stock provided in section 113. The preceding sentence shall not- apply to a distribution which is a dividend within the meaning of the last sentence of subsection (a). (j) Valuation of Dividend. — If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder. SEC. 115. DISTRIBUTIONS BY CORPORATIONS. >(d0 Other Distributions from Capital. — If any distribution made by a corporation to its shareholders is not out of increase in value of property accrued before March I, 1913, and is not a dividend, then the amount of such distribution shall be applied against and reduce the adjusted basis of the stock provided in section U3, and if in excess of such basis, such excess shall be taxable in the same manner as a gain from the sale or exchange of property. This subsection shall not apply to a distribution In partial or complete liquidation or to a distribution which, under subsection (f) (1), is not treated as a dividend, whether or not otherwise a dividend." }, { "docid": "18112788", "title": "", "text": "before March 1, 1913, may be distributed exempt from tax, after the earnings and profits accumulated after February 28, 1913, have been distributed, but any such tax-free distribution shall be applied against and reduce the adjusted basis of the stock provided in section 118.” Internal Revenue Code, section 115 (j) : “(j) Valuation op Dividend. — If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” Internal Revenue Code, section 115 (a) : “(a) Definition op Dividend. — The term ‘dividend’ when used in this chapter (except in section 203 (a) (3) and section 207 (c) (1), relating to insurance companies) means any distribution made by a corporation to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year) without regard to the amount of the earnings and profits at the time the distribution was made.” KerN, J., dissenting: A reduction in the tax liability of a corporation may constitute a legitimate business purpose of a reorganization under the statute. Clarence J. Schoo, 47 B. T. A. 459. See also C. A. Monroe, 39 B. T. A. 685; Tower v. Commissioner, 148 Fed. (2d) 388. A reduction in the corporation’s liability for dividends or interest also constitutes a legitimate business purpose. Annis Furs, Inc., 2 T. C. 1096. However, the majority opinion holds that, where the reduction in the corporation’s tax liability is accompanied by an increase in liability for interest in an equal or greater amount, the reduction in tax liability can not be said to be a legitimate business purpose. With this I am unable to agree. A realistic view of the ultimate purpose of" }, { "docid": "4851723", "title": "", "text": "the net assets of the corporation as between the preferred and the common stockholders. This distribution was in' our opinion a dividend and constituted taxable income to the shareholders within the meaning of the Sixteenth Amendment and under section 115 (f) of the Revenue Act of 1936. Petitioner is, therefore, entitled to a dividends paid credit under section 27 (e) of the Revenue Act of 1936 in the amount of the fair market value of the preferred stock distributed to its stockholders. Docket No. 108604. The respondent included in the income of Helms and his wife for 1936 $50,900 representing the value of the first and second preferred stock distributed to them by Helms Bakeries, computed at $100 per share. Helms contends that the preferred stock was not income within the meaning of the Sixteenth Amendment. If it is held to be income, however, then he contends that the amount thereof should be determined to be the fair market value of the preferred stock which he received. This has been stipulated to be $90 per share for the first preferred and $25 per share for the second preferred. It has been held that the preferred stock distributed by Helms Bakeries in 1936 was taxable income to the shareholders within the meaning of the Sixteenth Amendment and under section 115 (f). The corporation is being allowed a dividends paid credit equivalent to the fair market value of the stock at the time it was distributed. The respondent concedes that, if taxable as a dividend to the recipients, it should be included in their gross income at its fair market value at the time it was received by them rather than at par. This concession accords with our view of the law. The deficiency in this proceeding should therefore be recomputed, including in the income of Helms and his wife only the fair market value of the stock at the time it was received. Docket No. 102602. The issues in the proceeding of Helms, trustee, are: (a) Was taxable income realized in 1936 through distribution to the trustee of the first and" }, { "docid": "3134576", "title": "", "text": "treatment of dividends as income may well be subject to a single rule regardless of the bookkeeping methods of the taxpayer. It makes possible the checking of taxpayer’s returns against the corporation record of disbursements. It will prevent variations in the tax to be paid in those cases where dividends are paid in kind rather than in money and the value of the property fluctuates. The date of declaration of a dividend would not be a convenient date on which to compel a taxpayer to accrue payment for he will never receive it unless he is also a shareholder upon the date when the books close and that date is wholly subject to the corporation’s convenience, not that of either government or taxpayer. No one of these points would be conclusive if Congress made the rule the other way. But we think the successive promulgations of Regulations in identical language over the years, even after the Commissioner’s non-acquiescence in the Campbell case, are significant. We think the natural interpretation of the language is that a specific rule about dividends has been made applicable to all taxpayers, whatever their method of bookkeeping. As applied to this case the dividend is taxable in the year of its receipt, not the year of its declaration. The decision of the Board of Tax Appeals is reversed. 1941, 45 B.T.A. 1033. § 115, Revenue Act of 1936, 26 U.S. O.A. Int.Rev.Acts (1940) p. 868. Treas.Reg. 62, Art. 1541 (1921); Treas.Reg. 65, Art. 1541 (1924); Treas. Reg. 69, Art. 1541 (1926); Treas.Reg. 74, Art. 621 ,(1928); Treas.Reg. 77, Art. 621 (1932); Treas.Reg. 86, Art. 115-1 (1934); Treas.Reg. 94, Art. 115-1 (1936); Treas.Reg. 101, Art. 115-1 (1938); Treas. Reg. 103, § 19.115-1 (1940). Treas.Reg. 94, Art. 42-3 “Examples of constructive receipt” repeats the same language: “Dividends on corporate stock are subject to tax when unqualifiedly made subject to the demand of the shareholder.” Discussed in Adams v. Commissioner of Internal Revenue, 1930, 20 B.T.A. 243, affirmed 1 Cir., 1931, 54 F.2d 228." }, { "docid": "2265524", "title": "", "text": "The payment of dividends to its shareholders was the enjoyment of its income. A body corporate can be said to enjoy its income in no other way. Like the “life-rendering pelican,” it feeds its shareholders upon dividends. Whether they are in the form of notes or money is immaterial if the dividend is out of earnings, or consists of property purchased from earnings or which is regarded as earnings for accounting purposes. The respondent exercised its power to procure payment of its income to another, which was “the enjoyment, and hence the realization,” of its income. The distinction between General Utilities v. Helvering, supra, and this case lies in the difference in the character of the respective properties distributed as dividends in kind; one represented a capital asset, the other represents income. In the former, the fruit was on the tree; in the latter, the tree itself represents fruit of prior years that was not taxed. The distinction is the same as would have existed in the Horst case if the father had given his son the bond with the unearned-interest coupon attached. Consistency is essential to fairness in income-tax accounting. This is particularly true in respect to bad-debt deductions and recovery exclusions. The worthlessness of a bad debt is a question of fact; the burden of proving it is on the taxpayer. The incentive to claim it as a deduction may be tempered by the certainty that in subsequent years, if recovered, the debt will be treated not as a capital asset but as income. There remains a question as to the correctness of the Commissioner’s determination of the amount of income realized by the respondent upon the subsequent collection by the assignees of the notes distributed to them as a dividend in kind. It is contended that the tax liability, if any, should be measured by the market or intrinsic value of said notes when assigned, rather than (as the Commissioner determined) by the amounts collected less recoveries for which no tax benefit has been received. Section 115(j) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 115(j), provides" }, { "docid": "16884700", "title": "", "text": "that amount. Here the securities were bought during the taxable year wholly out of earnings and profits accumulated since February 28, 1913, held for a few months, and then turned over in kind to the partnership. The corporation charged the entire distribution to surplus on its books. What the partnership received was not the cash paid for the stock, but the stock itself. The securities clearly did not represent capital, nor did their distribution deplete capital. The distribution was made possible only by the expenditure of earnings and profits, and it depleted only earnings and profits. Hence the transaction fell within the definition of § 115(a) of the Revenue Act of 1936, and constituted a dividend partly in cash and partly in property. The stock and bonds should therefore have been treated as income in the amount of their fair market value, for § 115(j) provides that “If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” This section in express terms requires that the decision of the Tax Court be reversed. Neither the Tax Court nor the respondent discussed § 115 (j) of the Revenue Act of 1936 nor the applicable decisions. Under the rulings of the Supreme Court a property dividend becomes income to the shareholder at the time he receives it. Peabody v. Eisner, 247 U.S. 347, 38 S.Ct. 546, 62 L.Ed. 1152; Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149. The respondent contends that the decision must be affirmed because the appreciation in value of the stock and bonds of Alabama Mills, Inc., after purchase by the corporation was unrealized and was not an addition to the corporate earnings or profits. However, the taxpayer here is not the corporation, but a member of the partnership which, as stockholder, received the stocks and bonds. Hence the fact that the corporation’s earnings and profits were" }, { "docid": "16884699", "title": "", "text": "under § 115(a) and 115(b), Act of 1936 ................ 30,769.88 Balance taxable under § 115(d) $18,469.86 The balance of $18,469.86 was reported as though it had been received on the sale or exchange of property as required under § 115(d) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 869. The Commissioner determined income tax deficiencies against the individual partners, upon the theory that the partnership received dividend income in the full amount of the fair market value of the stocks and bonds when received from the corporation in addition to the cash dividend, totaling $49,239.74, and that each partner’s pro rata share of the partnership income should be determined accordingly. Under § 182 of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 897, each partner was required to compute as net income his distributive share of the net income of the partnership for the taxable year. The Tax Court considered that the earnings and profits of the corporation available for dividends were $28,773.06, and that the distribution constituted a dividend only to that amount. Here the securities were bought during the taxable year wholly out of earnings and profits accumulated since February 28, 1913, held for a few months, and then turned over in kind to the partnership. The corporation charged the entire distribution to surplus on its books. What the partnership received was not the cash paid for the stock, but the stock itself. The securities clearly did not represent capital, nor did their distribution deplete capital. The distribution was made possible only by the expenditure of earnings and profits, and it depleted only earnings and profits. Hence the transaction fell within the definition of § 115(a) of the Revenue Act of 1936, and constituted a dividend partly in cash and partly in property. The stock and bonds should therefore have been treated as income in the amount of their fair market value, for § 115(j) provides that “If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be" }, { "docid": "22232550", "title": "", "text": "received by the taxpayer. Benefits accruing as the result of the discharge of the taxpayer’s indebtedness or obligations constitute familiar examples. Old Colony Trust Co. v. Commissioner, 279 U. S. 716; Douglas v. Willcuts, 296 U. S. 1; United States v. Hendler, 303 U. S. 564. And increases in the value of property as a result of improvements made by the lessee are taxable income to the lessor even though the taxpayer could not “sever the improvement begetting the gain from his original capital.” Helvering v. Bruun, 309 U. S. 461, 469. The declaration of a stock dividend normally will not increase the wealth of the stockholders. Its accrual will usually antedate that event. See Haig et ah, The Federal Income Tax (1921) p. 8. For it is the accumulation of corporate earnings over a period of time which marks any real accrual of wealth to the stockholders. The narrow question here is whether Congress has the power to make the receipt of a stock dividend based on earnings an occasion for recognizing that accrual of wealth for income tax purposes. Congress has done so through the formula of computing the “income” to the stockholders at the “fair market value” of the stock dividends received. § 115 (j). Whether that is the most appropriate procedure which could be selected for the purpose may be arguable. But I can see no constitutional reason for saying that Congress cannot make that choice if it so desires. That is one way — though perhaps at times a crude one — of measuring for income tax purposes the wealth which normally accrues to stockholders as a result of the earning of their corporation. Mr. Justice Black and Mr. Justice Murphy join in this dissent. Sec. 115 (a) defines “dividend” as follows: “The term ‘dividend’ when used in this title . . . means any distribution made by a cor poration to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year" }, { "docid": "22115059", "title": "", "text": "him only upon sale or disposition, and the taxable- income is the difference between the amount thus realized and its cost, less allowed deductions. It follows that one does not subject himself to income tax by the mere purchase of property, even if at less than its true value, and that taxable gain does not accrue to him before he sells or otherwise disposes of it. Specific provisions establishing this basis for the taxation of gains derived from purchased property were included in the 1916 and each subsequent revenue Act and accompanying regulations. Section 22 of the Revenue Act of 1928 includes “dividends” in “gross income,” which is the basis of determining taxable net income, and § 115 defines “dividend” as “any distribution made by a corporation to its shareholders, whether in money or in other property, out of its earnings or profits.” While a sale of corporate assets to stockholders is, in a literal sense, a distribution of its property, such a transaction does not necessarily fall within the statutory definition of a dividend. For a sale to stockholders may not result in any diminution of its net worth and in that case cannot result in any distribution of its profits. On the other hand such a sale, if for substantially less than the value of the property sold, may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend. The necessary consequence of the corporate action may be in substance the kind of a distribution to stockholders which it is the purpose of § 115 to tax as present income to stockholders, and such a transaction may appropriately be deemed in effect the declaration of a dividend, taxable to the extent that the value of the distributed property exceeds the stipulated price. But the bare fact that a transaction, on its face a sale, has resulted in a distribution of some of the corporate assets to stockholders, gives rise to no inference that the distribution is a dividend within the meaning of § 115. To transfer it from the one category" }, { "docid": "18112787", "title": "", "text": "made was thereby decreased. The normal result of declaring a dividend of any kind is to reduce the value of stock theretofore outstanding. * * * If the debentures were worth at least as much as the corporation’s earned surplus, which they undoubtedly were, respondent’s determination must be sustained, and any further discussion is beyond the necessary confines of the present question. In the light of those circumstances we have found as a fact only that the fair market value of the debentures was at least as grea t as the dividend determined by respondent to have been received. It follows that respondent’s determination must be sustained in the amount found by him. Reviewed by the Court. Decision will he entered for the respondent. Internal Revenue Code, section 115(b) : “(b) Sodece of Distributions. — For the purposes of this chapter every distribution is made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits. Any earnings or profits accumulated or increase in value of property accrued, before March 1, 1913, may be distributed exempt from tax, after the earnings and profits accumulated after February 28, 1913, have been distributed, but any such tax-free distribution shall be applied against and reduce the adjusted basis of the stock provided in section 118.” Internal Revenue Code, section 115 (j) : “(j) Valuation op Dividend. — If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” Internal Revenue Code, section 115 (a) : “(a) Definition op Dividend. — The term ‘dividend’ when used in this chapter (except in section 203 (a) (3) and section 207 (c) (1), relating to insurance companies) means any distribution made by a corporation to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings" }, { "docid": "2265525", "title": "", "text": "son the bond with the unearned-interest coupon attached. Consistency is essential to fairness in income-tax accounting. This is particularly true in respect to bad-debt deductions and recovery exclusions. The worthlessness of a bad debt is a question of fact; the burden of proving it is on the taxpayer. The incentive to claim it as a deduction may be tempered by the certainty that in subsequent years, if recovered, the debt will be treated not as a capital asset but as income. There remains a question as to the correctness of the Commissioner’s determination of the amount of income realized by the respondent upon the subsequent collection by the assignees of the notes distributed to them as a dividend in kind. It is contended that the tax liability, if any, should be measured by the market or intrinsic value of said notes when assigned, rather than (as the Commissioner determined) by the amounts collected less recoveries for which no tax benefit has been received. Section 115(j) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 115(j), provides that, if the whole or any part of a dividend is paid to the shareholder' in any medium other than money, the property received shall be included in gross income at its fair market value as of the time that it became income to the shareholder. This paragraph relates to the value of property received by a shareholder as the distributee; it does not apply to the realization of income by the corporation that is distributing the property as a dividend. We are not here determining the tax liability of the respondent’s shareholders, and therefore said paragraph is not .applicable to the question before us. To ascertain in this case the amount of income taxable to the respondent, it is necessary to inquire as to the time that the income is realized under the anticipatory-assignment doctrine. Is it when the dividend in kind is declared, when the assignment is made, or when actual payment is received by the shareholder ? Mere unrealized appreciation in the value of property does not constitute taxable income; but this" }, { "docid": "22232551", "title": "", "text": "of wealth for income tax purposes. Congress has done so through the formula of computing the “income” to the stockholders at the “fair market value” of the stock dividends received. § 115 (j). Whether that is the most appropriate procedure which could be selected for the purpose may be arguable. But I can see no constitutional reason for saying that Congress cannot make that choice if it so desires. That is one way — though perhaps at times a crude one — of measuring for income tax purposes the wealth which normally accrues to stockholders as a result of the earning of their corporation. Mr. Justice Black and Mr. Justice Murphy join in this dissent. Sec. 115 (a) defines “dividend” as follows: “The term ‘dividend’ when used in this title . . . means any distribution made by a cor poration to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Sec. 115 (f) (1) is entitled “General Rule” and reads as follows: “A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall not be treated as a dividend to the extent that it does not constitute income to the shareholder within the meaning of the Sixteenth Amendment to the Constitution.” Sec. 115 (j) sets forth the formula for valuation of dividends other than cash dividends: “If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” April 29, 1936. See 80 Cong. Rec., p. 6367. The Koshland case was" }, { "docid": "8565673", "title": "", "text": "in determining the corporation’s 1937 earnings or profits available for distribution as dividends to its stockholders the taxpayer deducted from the net income of the corporation for that year the federal income tax imposed upon the 1937 income, although payable and paid in 1938, while the Commissioner deducted the 1936 tax payable and paid by the corporation in 1937. The corporation kept its books and filed its income tax returns on the cash receipts and disbursements basis; and in the petition on appeal to the Board it appears that the taxpayer kept its books and made its returns in the same way. The decision of the Board sustained the method of computation used by the taxpayer on the theory that in determining earnings and profits available for distribution as dividends taxes on current income must be taken into account, regardless of the method by which the corporation keeps its books, because, since the corporation had no accumulated earnings or profits at the beginning of the year, such an outstanding liability is a charge on capital. Section 22(a) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 825, provides that: “ ‘Gross income’ includes gains, profits, and income derived from * * * dividends * * Section 22(d) provides that “Distributions by corporations shall be taxable to the shareholders as provided in section 115.” Section 115(a), 26 U.S.C.A. Int.Rev.Acts, page 868, reads, “The term ‘dividend’ * * * means any distribution made by a corporation to its shareholders, * * * (2) out of the earnings or profits of the taxable year * * Article 115 — 1 of Regulations 94 provides that: “A taxable distribution made by a corporation to its shareholders shah be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” Article 115 — 3 provides that: “In determining the amount of earnings or profits * * * due consideration must be given to the facts * * The taxpayer does not contend, nor does the Board in its opinion take the position, that the" }, { "docid": "3134575", "title": "", "text": "demands.” This is part of the Regulation under the section in the Revenue Act which deals with distributions by corporations. Argument for the shareholder points out the use of identical language beginning with Article 1541 of Regulations 62 down to Section 19.115-1 of Regulations 103. The language neither now nor heretofore has made distinctions as to the time when the dividend is income according to the method of bookkeeping by the taxpayer. If literally applied to this case it obviously makes the time when the dividend was income not earlier than January 2, 1937. The argument by appellee that this is to be limited to shareholders on the cash receipts basis does not change the fact that the language used under Article 115 is general, not restricted, and that there is nothing in the context to indicate any restriction not expressed. We do not find in the legislative history of the sections of the Revenue Acts and the Regulations covering them anything which strengthens the position of either side. We do see reasons why the treatment of dividends as income may well be subject to a single rule regardless of the bookkeeping methods of the taxpayer. It makes possible the checking of taxpayer’s returns against the corporation record of disbursements. It will prevent variations in the tax to be paid in those cases where dividends are paid in kind rather than in money and the value of the property fluctuates. The date of declaration of a dividend would not be a convenient date on which to compel a taxpayer to accrue payment for he will never receive it unless he is also a shareholder upon the date when the books close and that date is wholly subject to the corporation’s convenience, not that of either government or taxpayer. No one of these points would be conclusive if Congress made the rule the other way. But we think the successive promulgations of Regulations in identical language over the years, even after the Commissioner’s non-acquiescence in the Campbell case, are significant. We think the natural interpretation of the language is that a" } ]

[ { "docid": "14990187", "title": "", "text": "through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. 35 U.S.C. § 256 (1984). Defendants’ argue that Section 256 should not be interpreted to create an independent private right of action to correct sole inventorship in the absence of litigation involving the validity or infringement of the patent in question. Plaintiff argues that Section 256 does, indeed, allow correction of patents by the substitution of the true sole inventor for the named sole inven tor. Because this specific issue has not been addressed by many courts, the parties’ base their positions primarily on their differing interpretations of Dee v. Aukerman, 625 F.Supp. 1427 (S.D.Ohio 1986). The court in Dee found that 35 U.S.C. § 256 can be interpreted to confer original jurisdiction for adjudication of a joint in-ventorship dispute. 625 F.Supp at 1429. The court also cited with approval the finding of the Ninth Circuit Court of Appeals, which, in addition to holding that Section 256 can be used to correct joint inventor-ship disputes, held that Section 256 cannot be used to substitute one sole inventor for another. Id. at 1428. The Ninth Circuit, in Bemis v. Chevron Research Co., 599 F.2d 910 (9th Cir.1979), specifically found: The Congressional committee report on § 256 clearly demonstrates that the statute remedies only innocent errors in join-der or non-joinder of inventors. 599 F.2d at 912. Similarly, the district court in Rival" } ]

[ { "docid": "2025723", "title": "", "text": "the question of whether consent of all parties is necessary to state a claim for correction in the district court. That court concluded properly that such consent is not necessary. Id., 444 F.2d at 410. In fact, inventorship contests by definition will lack consent of all inventors. The court then recognized, therefore, that the only procedural prerequisites to maintain a correction action in district court are notice and an opportunity for all parties to be heard. Id.; see MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 U.S.P.Q.2d 1287, 1289 (Fed.Cir.1989) (“[Section 256] prescribes only one prerequisite to judicial action: all parties must be given notice and an opportunity to be heard. If that is done, there is subject-matter jurisdiction in the district court over a dispute raising solely a joint inventorship issue among contending co-inventors.”). However, the Fourth Circuit did not address the substantive standards to be applied by district courts in correcting inventorship. Indeed, a number of federal courts have applied substantive standards in correcting inventorship under section 256. See, e.g., Bemis v. Chevron Research Co., 599 F.2d 910, 203 U.S.P.Q. 123 (9th Cir.1979); University of Colo. Found. Inc. v. American Cyanamid, 880 F.Supp. 1387, 35 U.S.P.Q.2d 1737 (D.Colo.1995). As noted above, the language of the statute itself directs courts to correct under standards “provided in this section.” B. AMI urges that this court has held previously that section 256 provides a remedy only in the case of a “bona fide mistake in inventorship.” Stark, 29 F.3d at 1573. This court’s statement, however, referred generally to the section’s purpose, without precluding its application in instances of deliberate nonjoinder of an inventor. In the earlier appeal involving these same patents, this court stated: “The purpose of section 256 was to provide a remedy for a bona fide mistake in inventorship.” Id. at 1573 (citations omitted). From that general proposition, this court determined that diligence is not a requirement to correct inventorship under section 256. Id. at 1576-77. More importantly for this appeal, this court remanded “for determination of the merits of the asserted inventorship claims.” Id. at" }, { "docid": "2025739", "title": "", "text": "the first paragraph, a paragraph that expressly deals exclusively with the administrative remedy before the Commissioner. There is no warrant for reading something into the statute that is not there, particularly when the effect of that reading is to constrain the equity powers of the district courts. The incongruity of that reading becomes even more apparent when it is observed that one of the requirements contained in the first paragraph is that the application for correction that is submitted to the Commissioner must be joined by “all the parties and assignees,” whereas this court has made clear that consent of all parties is not required for a court to order correction under § 256. MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 U.S.P.Q.2d 1287, 1289 (Fed.Cir.1989) (“In the event consensus is not attained, however, the second paragraph of section 256 permits redress in federal court.”). The panel majority, to be logically consistent, must either conclude that contested inventorships cannot be heard by either the Commissioner or the courts, regardless of what MCV said, or that it has the power to pick and choose which parts of paragraph one are to apply to a court proceeding. I do not believe it has the latter power, and the former conclusion makes no sense to me. Furthermore, the panel majority’s attempt to find in the “such matter” phrase of the second paragraph a statutory incorporation of the first paragraph’s requirements is unpersuasive. The referent of the phrase “such matter” in the second paragraph is clearly “[t]he error of omitting inventors or naming persons who are not inventors,” the subject of the second paragraph, and not the constraints on the exercise of administrative discretion by the Commissioner imposed in the first paragraph. This is a case of first impression in this court. A few other courts previously have made the same unsupported assumption, without any attempt to justify it. See, e.g., Bemis v. Chevron Research Co., 599 F.2d 910, 203 U.S.P.Q. 123 (9th Cir.1979); Dee v. Aukerman, 625 F.Supp. 1427, 228 U.S.P.Q. 600 (S.D.Ohio 1986) (following Bemis). In Bemis, the issue" }, { "docid": "16729277", "title": "", "text": "v. Rubbermaid, Inc., 735 F.Supp. 786 (N.D.Ill.1990); Celestron Pacific v. Criterion Mfg. Co., 552 F.Supp. 612 (D.Conn.1982); Bemis v. Chevron Research Co., 599 F.2d 910 (9th Cir.1979) cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 (1979); Rival Mfg. Co. v. Dazey Products Co., 358 F.Supp. 91 (W.D.Mo.1973). See also Dee v. Aukerman, 625 F.Supp. 1427, 1429 (S.D.Ohio 1986) (holding that § 256 “seems to indicate a congressional interest in resolving inadvertent mistakes with respect to joint inventorship ... ”.) In Rival Mfg., the court held that § 256 is: limited to the correction of errors involving true joint ownership and does not contemplate or permit what would amount to a substitution of one inventor entity for another under the guise of ‘correction’ ... Id. at 101. Similarly, the court in Bemis noted that the congressional committee report on § 256 “clearly demonstrates” that the statute remedies only innocent errors in joinder or non-joinder of inventors. Id. at 912. Far from seeking a remedy for an innocent error, plaintiff in this case alleges that Harwood committed a fraud on the PTO by applying for the patent under his own name. In this regard consider the following: “[sjection 256 thus provides a remedy for innocent errors where the name of an inventor was inadvertently deleted or joined in the design patent, (citation omitted) This section does not deal with fraud on the PTO, Rubbermaid’s theory here.” Eldon Industries supra at 817, n. 16, citing Bemis. Plaintiffs complaint clearly alleges that he is the sole inventor of the subject patent. He does not seek to “correct” the patent to reflect “joint inventorship”. Rather, plaintiff seeks a declaration that he is the “inventor of the invention disclosed and claimed in the 963 Patent” and a “certificate of correction of inventorship be made to identify McMurray as the sole inventor of the 963 Patent.” (Complaint at page 14). Based on a plain reading of § 256, and the uniform construction given that section by the case law, plaintiffs first claim for relief must be dismissed. Having dismissed plaintiffs only federal claim, and" }, { "docid": "4063322", "title": "", "text": ". While the court frequently refers to Eldon’s alleged trade dress as its ribbed design, it should be understood that the entire design configuration, not just the ribs, constitutes the claimed trade dress. . Eldon was unable to separate the expenses attributable to a particular product or product line. . Arguing that the Eldon design patents were invalid in that Eldon committed a fraud upon the PTO in failing to name Gordon MacKay as an inventor of the subject designs in Patent Nos. 220,633 (the Add-A-File) and 220,014 (the Stackable), Rubbermaid contends, citing 35 U.S.C. § 256, that \"Eldon should be barred by its unclean hands from using the period of time that the patents were in force in an attempt to establish secondary meaning.\" Rubbermaid’s Post Preliminary Injunction Hearing Brief at 31. Section 256 provides that an error regarding the inventor(s) named in an issued patent may be corrected where “such error arose without any deceptive intention\" on the part of the named inventor. Dee v. Aukerman, 625 F.Supp. 1427, 1430 (S.D.Ohio 1986). Section 256 thus provides a remedy for innocent errors where the name of an inventor was inadvertently deleted or joined in the design patent. Bemis v. Chevron Research Co., 599 F.2d 910, 912 (9th Cir.), cert. denied, 444 U.S. 966 [100 S.Ct. 454, 62 L.Ed.2d 378] (1979). The section does not deal with fraud on the PTO, Rubbermaid's theory here. When § 256 is invoked to correct errors in an existing patent, the burden of proving “without deceptive intention” is on the named inventor. See Dee, supra at 1430. When a defendant is claiming fraud on the PTO, however, the defendant has the burden of proving fraud. \"Fraud on the PTO” is also known as inequitable conduct. See J.P. Stevens & Co. v. Lex Tex Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984), cert. denied, 474 U.S. 822 [106 S.Ct. 73, 88 L.Ed.2d 60] (1985); FMC Corp. v. Manitowoc Co., Inc., 654 F.Supp. 915, 934 (N.D.Ill.), aff’d, 835 F.2d 1411 (Fed.Cir. 1987). The proponent of the theory must show, by clear and convincing evidence, that the information withheld" }, { "docid": "2025724", "title": "", "text": "Bemis v. Chevron Research Co., 599 F.2d 910, 203 U.S.P.Q. 123 (9th Cir.1979); University of Colo. Found. Inc. v. American Cyanamid, 880 F.Supp. 1387, 35 U.S.P.Q.2d 1737 (D.Colo.1995). As noted above, the language of the statute itself directs courts to correct under standards “provided in this section.” B. AMI urges that this court has held previously that section 256 provides a remedy only in the case of a “bona fide mistake in inventorship.” Stark, 29 F.3d at 1573. This court’s statement, however, referred generally to the section’s purpose, without precluding its application in instances of deliberate nonjoinder of an inventor. In the earlier appeal involving these same patents, this court stated: “The purpose of section 256 was to provide a remedy for a bona fide mistake in inventorship.” Id. at 1573 (citations omitted). From that general proposition, this court determined that diligence is not a requirement to correct inventorship under section 256. Id. at 1576-77. More importantly for this appeal, this court remanded “for determination of the merits of the asserted inventorship claims.” Id. at 1577. Thus, the reference to the purpose of the section did not resolve the issue remanded to the district court and now before this court on interlocutory appeal. Without binding precedent on the meaning of the terms “error” and “without any deceptive intention on his part,” this court consults again the statutory language. As noted, section 256 permits the Commissioner and federal courts to correct erroneous listing of inventors in an issued patent. In the event of nonjoinder of an inventor, this error must occur “without any deceptive intention on his part.” The clause “on his part” refers to the antecedent “inventor,” meaning that the omitted inventor must not have engaged in any deception related to the nonjoinder. Read together, the separate misjoinder and nonjoinder clauses of section 256 enlighten the meaning of the term “error.” The misjoinder clause does not contain the “without any deceptive intention” language. If the term “error” referred only to honest mistakes, the statute would have no need to add the “without deceptive intention” requirement in the nonjoinder clause. An" }, { "docid": "5921882", "title": "", "text": "Barr Labs. Inc., 828 F.Supp. 1200, 1204 (E.D.N.C.1993) (citing Amax Fly Ash Corp. v. United States, 206 Ct.Cl. 756, 514 F.2d 1041, 1047 (Cl.Ct.1975)). However, a party may allege, as Plaintiff has here, that it was omitted from the named inventors under 35 U.S.C. § 256: Whenever ... through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. ... The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. Id. Here, Plaintiff has called into question the omission of scientists it alleges are joint inventors on both the ’497 and the ’798 patents. The only procedural requirements for a correction of inventorship action in district court are notice and an opportunity to be heard. Id.; see also Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1553 (Fed.Cir.1997). Both have been provided in this case. Therefore, the Court, if it is appropriate under the facts, may order correction of the patent. MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570 (Fed.Cir.1989) (“Section 256 ... explicitly authorizes judicial resolution of co-inventorship contests over issued patents ... ”). With respect to joint inventorship, the Federal Circuit has said: All that is required of a joint inventor is that he or she (1) contribute in some significant manner to the conception or reduction to practice of the invention; (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention; and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art. Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed.Cir.1998). Joint inventors must also be working in collaboration. See Kimberly-Clark Corp. v. Proctor & Gamble Distrib." }, { "docid": "23003044", "title": "", "text": "consequence, the patent, as to the claims in suit, is invalid.” (citations omitted)); Smart v. Wright, 227 F. 84, 87 (8th Cir.1915) (“[T]he machine was the result of the joint thought and action of the two men, Wright and Smart. That being the case, neither of them could secure a valid patent as sole inventor.”). Neither the plain language nor the pertinent legislative history of section 102(f) indicates that Congress intended that section to effect a change in existing law. See S.Rep. No. 82-1979, at 5 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2395 (“Subsection (f) merely emphasizes that it is the inventor that applies for the patent.”). Thus, section 102(f) still makes the naming of the correct inventor or inventors a condition of patentability; failure to name them renders a patent invalid. However, in cases of misjoinder and non-joinder the operation of section 102(f) is ameliorated by section 256. See MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 U.S.P.Q.2d 1287, 1289 (Fed.Cir.1989) (“Before the enactment of section 256, paten-tees and their assignees committed inventor-ship errors at their peril; misjoinder or non-joinder of an inventor rendered the patent invalid. Section 256 affords the opportunity to correct the patent.”); see also S.Rep. No. 82-1979, at 7-8 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2401-02 (“Very often two or three people make an invention together. They must apply as joint inventors. If they make a mistake in determining who are the true inventors, they do so at their peril. This provision permits a bona fide mistake in joining a person as [an] inventor or in failing to join a person as an inventor to be corrected.”); id. at 27, reprinted in 1952 U.S.C.C.A.N. 2394, 2421 (“This section is new and a companion to section 116.”). Section 256 provides that: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the" }, { "docid": "2025722", "title": "", "text": "such surgical separation of the administrative Chang and judicial Eng. The first sentence of the second paragraph clarifies that all instances of correction proceed under the standards “provided in this section.” Then the next sentence permits courts “before which such matter is called in question” to also order correction. The “such matter” upon which the court may act is “correction as provided in this section.” Thus, section 256 expressly applies the standards of the entire section, including the first paragraph, to both administrative and judicial proceedings. In other words, the nonjoinder and misjoinder clauses supply the heart of the correction standard from which both sentences of the second paragraph draw lifeblood. To hold otherwise would both contradict the language of the statute and leave the district court unfettered discretion to decide when and under what terms to allow correction. Our sister circuit’s opinion, cited in the concurrence, is not to the contrary. In Iowa State University Research Foundation, Inc. v. Sperry Rand Carp., 444 F.2d 406, 170 U.S.P.Q. 374 (4th Cir.1971), the Fourth Circuit addressed the question of whether consent of all parties is necessary to state a claim for correction in the district court. That court concluded properly that such consent is not necessary. Id., 444 F.2d at 410. In fact, inventorship contests by definition will lack consent of all inventors. The court then recognized, therefore, that the only procedural prerequisites to maintain a correction action in district court are notice and an opportunity for all parties to be heard. Id.; see MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 U.S.P.Q.2d 1287, 1289 (Fed.Cir.1989) (“[Section 256] prescribes only one prerequisite to judicial action: all parties must be given notice and an opportunity to be heard. If that is done, there is subject-matter jurisdiction in the district court over a dispute raising solely a joint inventorship issue among contending co-inventors.”). However, the Fourth Circuit did not address the substantive standards to be applied by district courts in correcting inventorship. Indeed, a number of federal courts have applied substantive standards in correcting inventorship under section 256. See, e.g.," }, { "docid": "4950375", "title": "", "text": "in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. Defendants’ contention is that § 256 permits a court, during the course of litigation as to the validity of a patent, to order correction of the patent on notice and hearing of all parties concerned. Defendants do not believe, on the other hand, in the absence of such patent litigation, that § 256 confers jurisdiction upon this Court to correct innocent errors of misjoinder or nonjoinder in a patent application. This Court has found two cases in which, apparently, § 256 was found to confer original jurisdiction to resolve an inventorship dispute involving an innocent error of misjoinder or nonjoinder. Mechmetals Corp. v. Telex Computer Products, Inc., 518 F.Supp. 243 (C.D.Calif.1981); modified, 709 F.2d 1287 (9th Cir.1983); Aetna-Standard Engineering Company v. Rowland, 223 U.S.P.Q. 557, 560 (Penn.Court Common Pleas 1983). Unfortunately, in neither case is the scope of § 256 analyzed. In Mechmetals, subject matter jurisdiction was predicated upon 28 U.S.C. § 1338(a), and the court decided on the merits plaintiff’s claim that its employee was properly named as a joint inventor. There was no diversity jurisdiction available in that case. 709 F.2d at 1290 n. 4. As for the two cases cited by Defendants, the Court finds that they, too, cannot be considered definitive with respect to subject matter jurisdiction herein. The Ninth Circuit in Bemis v. Chevron Research Company, 599 F.2d 910 (9th Cir.1979)" }, { "docid": "23003046", "title": "", "text": "facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. This section is a savings provision. If a patentee demonstrates that inventorship can be corrected as provided for in section 256, a district court must order correction of the patent, thus saving it from being rendered invalid. When a party asserts invalidity under § 102(f) due- to nonjoinder, a district court should first determine whether there exists clear and convincing proof that the alleged unnamed inventor was in fact a co-inventor. Upon such a finding of incorrect inventorship, a patentee may invoke section 256 to save the patent from invalidity. Accordingly, the patentee must then be given an opportunity to correct inventorship pursuant to that-section. Nonjoinder may be corrected “on notice and hearing of all parties concerned” and upon a showing that the error occurred without any deceptive intent on the part of the unnamed inventor. 35 U.S.C. § 256; see Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1555, 43 U.S.P.Q.2d 1321, 1324 (Fed.Cir.1997) (“[T]he section allows addition of an unnamed actual inventor, but this error of nonjoinder cannot betray any deceptive intent by that inventor.”); see also P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1, 50 (1954), reprinted in 75 J. Pat. & Trademark Off. Soc’y 163, 211 (1993) (“[Nonjoinder of joint inventors shall not invalidate a patent if the mistake is one that can be corrected under the [sic., this] section, that is, arose by error and without deceptive intention, and gives a court authority to order correction.”). Finally, a patent with improper inventorship does not avoid invalidation simply because it might be corrected under section 256. Rather, the patentee must claim entitlement to relief" }, { "docid": "5921883", "title": "", "text": "to be heard. Id.; see also Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1553 (Fed.Cir.1997). Both have been provided in this case. Therefore, the Court, if it is appropriate under the facts, may order correction of the patent. MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570 (Fed.Cir.1989) (“Section 256 ... explicitly authorizes judicial resolution of co-inventorship contests over issued patents ... ”). With respect to joint inventorship, the Federal Circuit has said: All that is required of a joint inventor is that he or she (1) contribute in some significant manner to the conception or reduction to practice of the invention; (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention; and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art. Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed.Cir.1998). Joint inventors must also be working in collaboration. See Kimberly-Clark Corp. v. Proctor & Gamble Distrib. Co., 973 F.2d 911, 917 (Fed.Cir.1992) (holding that joint inventorship requires some level of collaboration). However, “[t]he question of whether a person is a joint inventor is fact specific, and no bright-line standard will suffice in every case.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997). Therefore, the facts of this case will be reviewed with respect to each patent to determine whether there is clear and convincing evidence that RPA’s five scientists meet the standard for joint inventorship. An inventorship analysis, like an infringement analysis, begins with a construction of each asserted claim. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n. 7 (Fed.Cir.1995) (Mayer, J., concurring), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). After each asserted claim is construed, the second step is then to compare the alleged contributions of each asserted co-inventor with the subject matter of the properly construed claim to determine whether the correct inventors were named. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). Thus, the" }, { "docid": "18872384", "title": "", "text": "bound to allow Stark to proceed to trial and to argue his case under section 256, the Court rejects the interpretation of this provision advanced by Stark and holds that, unless Stark make a prior election, the jury will have to decide which of the mutually exclusive claims it wishes to pursue to verdict. This section sets out the reasoning for the Court’s approach. 1. Judicial Decisions — District court decisions interpreting section 256 uniformly require lack of deceptive intention on the part of the person originally named in a patent as a prerequisite for correction of inventorship. See University of Colorado Foundation, Inc. v. American Cyanamid, 880 F.Supp. 1387, 1399 (D.Colo., 1995) (section 256 inapplicable where plaintiffs seek correction based on alleged fraud and deception of defendant); McMurray v. Harwood, 870 F.Supp. 917, 919-20 (E.D.Wis.1994) (section 256 limited to correction of innocent errors and does not permit the replacement of fraudulently named inventor with that of the innocent inventor); General Elec. Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887, 1992 WL 394933 (N.D.N.Y.1992) (at a minimum there must be a lack of deceptive intention on the part of the person named as the inventor); Rodgard Corp. v. Miner Enter., Inc., No. Civ.-84397E, 1990 WL 159048, at *2 (W.D.N.Y. Oct. 17, 1990) (improper to correct patent where alleged failure to name proper inventor is asserted as intentional); Dee v. Aukemum, 625 F.Supp. 1427, 1430 (S.D.Ohio 1986) (section 256 limited to omission or mistake due to inadvertent error). The district courts in McMurray and General Electric relied upon decisions that antedated the 1982 amendment to section 256, reasoning that the deceptive intention requirement was not changed. McMurray, 870 F.Supp. at 919 & n. 2 (amendment did not overturn prior [and subsequent] authority which uniformly holds that § 256 does not permit correction where the named person is accused of deception or fraud) (citing Bemis v. Chevron Research Co., 599 F.2d 910, 912 [9th Cir.], cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 [1979] [per curiam ] [improper to substitute inventors on a patent sounding in conspiracy and fraud]); General" }, { "docid": "18872385", "title": "", "text": "minimum there must be a lack of deceptive intention on the part of the person named as the inventor); Rodgard Corp. v. Miner Enter., Inc., No. Civ.-84397E, 1990 WL 159048, at *2 (W.D.N.Y. Oct. 17, 1990) (improper to correct patent where alleged failure to name proper inventor is asserted as intentional); Dee v. Aukemum, 625 F.Supp. 1427, 1430 (S.D.Ohio 1986) (section 256 limited to omission or mistake due to inadvertent error). The district courts in McMurray and General Electric relied upon decisions that antedated the 1982 amendment to section 256, reasoning that the deceptive intention requirement was not changed. McMurray, 870 F.Supp. at 919 & n. 2 (amendment did not overturn prior [and subsequent] authority which uniformly holds that § 256 does not permit correction where the named person is accused of deception or fraud) (citing Bemis v. Chevron Research Co., 599 F.2d 910, 912 [9th Cir.], cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 [1979] [per curiam ] [improper to substitute inventors on a patent sounding in conspiracy and fraud]); General Elec., 25 U.S.P.Q.2d at 1887 (deceptive intention language was not changed in the amendment) (citing Rival Mfg. Co. v. Dazey Prod. Co., 358 F.Supp. 91, 101-102 [WD.Mo.1973]). Both the University of Colorado and the McMurray decisions considered — and rejected — the notion that the decision of the Federal Circuit in Stark I spoke to the “without deceptive intent” requirement of section 256. University of Colorado, 880 F.Supp. at 1399; McMurray, 870 F.Supp. at 921. This Court disagrees due to its familiarity with the arguments advanced in the underlying litigation. Nevertheless, for the purposes of this discussion, the Court adopts the remark in University of Colorado that “neither the Supreme Court nor the Federal Circuit has squarely addressed whether the words ‘without deceptive intent’ in § 256 refer to the patentee, the omitted inventor, or both.” 870 F.Supp. at 1398. There is, therefore, no controlling authority, although the distinguished district courts that have considered the matter uniformly reject the cause of action sought to be asserted here. Thus, this Court considers the language of the" }, { "docid": "23701605", "title": "", "text": "(1988)].”). Section 256 reads: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignee\", with proof of the facts and such other r quire-ments as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. This section provides a cause of action to interested parties to have the inventorship of a patent changed to reflect the true inventors of the subject matter claimed in the patent. A patentee or its assignee may state a claim under this section even where there is not a consensus on the correct inventorship as long as all parties are given notice and an opportunity to be heard. See MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 USPQ2d 1287, 1289 (Fed.Cir.1989). We hold that a declaratory plaintiff may establish an actual controversy in this context by averring: (1) that it holds a recognized interest in a patent that could be adversely affected by an action brought under section 256, and (2) another party with a right to bring an action under section 256 has created in the declaratory plaintiff a reasonable apprehension that it will do so. This standard respects the constitutional requirement of an actual controversy. The declaratory plaintiffs interest in the patent, coupled with its reasonable apprehension of suit, ensures that the parties to the declaratory suit are adverse and that their dispute is sufficient in character to create an actual controversy. See Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97 L.Ed." }, { "docid": "2025738", "title": "", "text": "which a court may correct an error in inventorship. The second paragraph of § 256 contains two ideas. In the first sentence, Congress makes clear that when an error in inventor-ship is corrected pursuant to either the first or second paragraphs (“if it can be corrected as provided in this section ”) (emphasis added), the patent is not rendered invalid because of the original error. This was an important addition to the law of patents, and obviously was intended to apply whether the correction be by Commissioner or court. The second idea in the second paragraph is that when a correction issue is brought before a court, the court may correct the error “on notice and hearing of all parties concerned.” The statute does not specify, and thus leaves to traditional common law concepts of equity jurisprudence, the circumstances and terms on which a court may find correction warranted. The panel majority assumes, without any support in the statute or in the legislative history, that somehow courts are constrained by the statutory requirements expressed in the first paragraph, a paragraph that expressly deals exclusively with the administrative remedy before the Commissioner. There is no warrant for reading something into the statute that is not there, particularly when the effect of that reading is to constrain the equity powers of the district courts. The incongruity of that reading becomes even more apparent when it is observed that one of the requirements contained in the first paragraph is that the application for correction that is submitted to the Commissioner must be joined by “all the parties and assignees,” whereas this court has made clear that consent of all parties is not required for a court to order correction under § 256. MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 U.S.P.Q.2d 1287, 1289 (Fed.Cir.1989) (“In the event consensus is not attained, however, the second paragraph of section 256 permits redress in federal court.”). The panel majority, to be logically consistent, must either conclude that contested inventorships cannot be heard by either the Commissioner or the courts, regardless of what MCV" }, { "docid": "20066258", "title": "", "text": "named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. 35 U.S.C. § 256. By our construction, § 256 “provides a cause of action to interested parties to have the inventorship of a patent changed to reflect the true inventors of the subject matter claimed in the patent.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1471 (Fed.Cir.1997). “We have previously interpreted § 256 broadly as a ‘savings provision’ to prevent patent rights from being extinguished simply because the inventors are not correctly listed.” Chou v. Univ. of Chi, 254 F.3d 1347, 1358 (Fed.Cir.2001) (quoting Pannu v. Iolab Corp., 155 F.3d 1344, 1349 (Fed.Cir.1998)). Just as the “well-pleaded complaint” rule governs federal-question jurisdiction in general, jurisdiction under § 1338 “extend[s] only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on the resolution of a substantial question of federal patent law, in that patent law is a necessary element of the well-pleaded claims.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). There is no doubt that § 256 supplies such a valid basis for federal jurisdiction: an action to correct inventorship under § 256 “arisfes] under” the patent laws for the purpose of § 1338(a). MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570 (Fed. Cir.1989). Larson’s amended complaint includes three counts seeking declaratory judgments — count eight (against" }, { "docid": "14802477", "title": "", "text": "inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. 35 U.S.C. § 256 (Supp. V 1999) (emphasis added); MCV Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570, 10 USPQ2d 1287, 1289 (Fed.Cir.1989). The district court is indeed a court before which the matter was called into question, and notice and an opportunity for a hearing were provided. Chou, as a party “concerned,” is clearly within the purview of the statute, but she must meet constitutional standing requirements in order to invoke it. That is, she must show that she has suffered an injury-in-fact, that the injury is traceable to the conduct complained of, and that the injury is redressable by a favorable decision. U.S. Const. art. Ill, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The district court determined that Chou did not have standing to sue for correction of inventorship on the basis of “[t]he principle that one who claims no ownership of the patent has no standing to seek relief under § 256.” Chou at *2, 2000 U.S. Dist. LEXIS 2002, at *6 (citing Kucharczyk v. Regents of the Univ. of Cal., 48 F.Supp.2d 964, 974-975 (N.D.Cal.1999)). The question whether a putative inventor who is obligated to assign her invention to another is entitled to sue for correction of inven-torship under § 256 action is one of first impression for this court, notwithstanding the parties’ arguments to the contrary. Chou argues that University of Colorado holds that a true inventor has the right to bring a § 256 action even absent an ownership interest. Although that case involved a § 256 action, we did not decide whether alleged inventors had an independent right to bring suit even though they had assigned their interest to the University. 196 F.3d at 1374-75, 52 USPQ2d at" }, { "docid": "18872383", "title": "", "text": "inappropriate ground); Wells Cargo, Inc. v. Wells Cargo, Inc., 606 F.2d 961, 964 n. 4 (C.C.P.A.1979) (same). As the Federal Circuit would have obviated the need for further proceedings had it considered the argument of Advanced to be a valid alternative ground for upholding a grant of summary judgment, this Court must decline to revisit, at this stage of the litigation, the deceptive intention issue. The mandate rule thus bars the Court from revisiting the argument, previously rejected in this litigation, that Stark removed himself from the remedial scope of section 256 by alleging deceptive intention on the part of Advanced. Accordingly, this Court follows the Federal Circuit’s mandate and denies the motion of Advanced for partial summary judgment. B. Section 256 Advanced contends that correction of inventorship under section 256 requires lack of deceptive intention on the part of initial applicants (here, Advanced), and possibly the omitted inventor as well. Stark, on the other hand, argues that only the actual inventor need be innocent of deceptive intention. Although, as explained above, this Court is bound to allow Stark to proceed to trial and to argue his case under section 256, the Court rejects the interpretation of this provision advanced by Stark and holds that, unless Stark make a prior election, the jury will have to decide which of the mutually exclusive claims it wishes to pursue to verdict. This section sets out the reasoning for the Court’s approach. 1. Judicial Decisions — District court decisions interpreting section 256 uniformly require lack of deceptive intention on the part of the person originally named in a patent as a prerequisite for correction of inventorship. See University of Colorado Foundation, Inc. v. American Cyanamid, 880 F.Supp. 1387, 1399 (D.Colo., 1995) (section 256 inapplicable where plaintiffs seek correction based on alleged fraud and deception of defendant); McMurray v. Harwood, 870 F.Supp. 917, 919-20 (E.D.Wis.1994) (section 256 limited to correction of innocent errors and does not permit the replacement of fraudulently named inventor with that of the innocent inventor); General Elec. Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887, 1992 WL 394933 (N.D.N.Y.1992) (at a" }, { "docid": "16729276", "title": "", "text": "256 provides: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. While there are not many cases which discuss the scope of this section, those that have, uniformly agree that it may not be used to substitute one sole inventor for another. Rawlplug Co. v. Hilti Aktiengesellschaft, 777 F.Supp. 240 (S.D.N.Y.1991); Eldon Industries, Inc. v. Rubbermaid, Inc., 735 F.Supp. 786 (N.D.Ill.1990); Celestron Pacific v. Criterion Mfg. Co., 552 F.Supp. 612 (D.Conn.1982); Bemis v. Chevron Research Co., 599 F.2d 910 (9th Cir.1979) cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 (1979); Rival Mfg. Co. v. Dazey Products Co., 358 F.Supp. 91 (W.D.Mo.1973). See also Dee v. Aukerman, 625 F.Supp. 1427, 1429 (S.D.Ohio 1986) (holding that § 256 “seems to indicate a congressional interest in resolving inadvertent mistakes with respect to joint inventorship ... ”.) In Rival Mfg., the court held that § 256 is: limited to the correction of errors involving true joint ownership and does not contemplate or permit what would amount to a substitution of one inventor entity for another under the guise of ‘correction’ ... Id. at 101. Similarly, the court in Bemis noted that the congressional committee report on § 256 “clearly demonstrates” that the statute remedies only innocent errors in joinder or non-joinder of inventors. Id. at 912. Far from seeking a remedy for an innocent error, plaintiff in this case alleges" }, { "docid": "7450356", "title": "", "text": "is apparent that both criteria are met. MCV’s cause of action is created by section 256 which explicitly authorizes judicial resolution of co-inventorship contests over issued patents, although not quite as explicitly as sections 145 and 146, for example, speak of judicial access. Before the enactment of section 256, patentees and their assignees committed inventorship errors at their peril; misjoinder or nonjoinder of an inventor rendered the patent invalid. Section 256 affords the opportunity to correct the patent. S.Rep. No. 1979, 82nd Cong., 2nd Sess. at 7 (1952), U.S.Code Cong. & Admin.News 1952, pp. 2394, 2401. If the patentees and their assignees agree, correction can be had on application to the Commissioner. In the event consensus is not attained, however, the second paragraph of section 256 permits redress in federal court. See P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1 (1954) (“If [the parties] do not concur, the correction can only be made on order of a court_ [S]ection 256 ... gives a court authority to order correction”). The statute prescribes only one prerequisite to judicial action: all parties must be given notice and an opportunity to be heard. If that is done, there is subject-matter jurisdiction in the district court over a dispute raising solely a joint inventorship issue among contending co-inventors. See Iowa State University Foundation v. Sperry Rand Corp., 444 F.2d 406, 170 USPQ 374 (4th Cir.1971); Dee v. Aukerman, 625 F.Supp. 1427, 228 USPQ 600 (S.D.Ohio 1986). Dee and Iowa State helpfully review the legislative history and the “broad remedial purposes of Congress in enacting § 256 in 1952,” which we subscribe to but do not repeat here. Dee, 625 F.Supp. at 1428, 228 USPQ at 601; see Iowa State, 444 F.2d at 410, 170 USPQ at 377. It is also the case that “relief necessarily depends on resolution of a substantial question of federal patent law.” Christianson, 486 U.S. at -, 108 S.Ct. at 2173, 7 USPQ2d at 1113. Although we do not reach it, the dispositive issue on the merits would be the definition of the invention, as to which no" } ]

[ { "docid": "22154855", "title": "", "text": "Mersay v. First Rep. Corp. of America, 43 F.R.D. 465 (S.D.N.Y., 1968); 7 C. Wright and A. Miller, Federal Practice and Procedure, § 1764 at 614 (1972) [hereinafter cited as Wright and Miller]. . Since Gonzales and the other named plaintiffs fell within the group to whom only prospective relief had been granted by the Gaytan court, in that their licenses had been suspended prior to June 30, 1971, they were denied relief by the application of res judicata. Plaintiff Louanner H. Edwards was granted relief, for the reason that his license had not been suspended prior to June 30. At this time the court also denied the request that the Gonzales suit be maintained as a class action. . We rejected appellants’ assertion that Gaytan’s claims were not typical of the class within the meaning of 23(a) (3) in note 7, supra. . See Epstein v. Weiss, 50 F.R.D. 387 (E.D.La., 1970); Herbst v. Able, 47 F.R.D. 11 (S.D.N.Y., 1969); Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y., 1968),; Mersay v. First Rep. Corp. of America, 43 F.R.D, 465 (S.D.N.Y.1968). See, generally, 3B J. Moore, Federal Practice, ¶ 2302-.07 (2d Ed. 1969). [hereinafter cited as Moore]; Wright and Miller, § 1765. In Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2nd Cir., 1968), the court also noted: “[A]n essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those of the remainder of the class.” . This question necessarily requires a hindsight approach to the issue of adequate representation, and in no way reflects on the Q-aytan court’s conclusion that Gaytan would adequately represent the class. . One distinction between members of a class in a (b)(1), (b)(2), or (b)(3), action is that absent (b),(l) and (b) (2) members do not have the privilege of opting out of the suit that is accorded to class members in a (b) (3)" } ]

[ { "docid": "22291667", "title": "", "text": "class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Subsection (b)(2) requires that “the party opposing the class ha[ve] acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” With 123 voters as potential plaintiffs and only limited time to act, the district court did not err in finding that joinder of all class members would be impracticable. The court also properly discerned a question of law or fact common to the voters of the class, i. e., whether the retroactive invalidation of ballots cast in an officially-endorsed manner amounted to a constitutional violation. It is a closer question whether the named plaintiffs’ claims were “typical”, and whether those plaintiffs could fairly and adequately represent the class. Fed.R.Civ.P. 23(a)(3) and (a)(4). The named plaintiffs were all Griffin supporters, whose attorney had formerly represented Griffin. While these facts assured vigorous representation, see Gonzalez v. Cassidy, 474 F.2d 67, 72, 75 (5th Cir. 1973), a few — though only a few — of the absentee and shut-in voters had supported candidates other than Griffin and therefore might have preferred both to let stand the machine count of the March primary and to be represented by others than Griffin’s supporters and counsel. But not all class members need “be aggrieved by or desire to challenge defendant’s conduct in order for some to seek relief under (b)(2).” 7A Wright and Miller, Federal Practice and Procedure, Civil: § 1775 at 21 (1972); Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); see Senter v. General Motors Corp., 532 F.2d 511, 523-25 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d" }, { "docid": "22458632", "title": "", "text": "remand this case to the district court for a full evidentiary hearing on the determination of the class. III. Evidentiary Hearing on Class Since the hearing below will, of course, be open to evidence on all points relating to the propriety of the class action, we deem it advisable to add a few words about the requirements of Rule 23. As an initial matter, it is important to remember that Rule 23(a) must be read liberally in the context of civil rights suits. Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, 50; 7 Wright & Miller, Federal Practice and Procedure § 1771 at 663 (1972). This is especially true when the class action falls under Rule 23(b)(2), where the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. As we stated in Davis v. Weir, 5 Cir. 1974, 497 F.2d 139, 146, interpreting Rule 23(b)(2): This language does not mandate that all members of the (b)(2) class be aggrieved by or desire to challenge the defendant’s conduct. See, e. g., Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). It does require, however, that the conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class. Since it is not necessary that the members of the class be so clearly identified that any member can be presently ascertained, Carpenter v. Davis, 5 Cir. 1970, 424 F.2d 257, 260, the 23(b)(2) class action is an effective weapon for an across-the-board attack against systematic abuse. See Foster v. Sparks, 5 Cir. 1975, 506 F.2d 805; Long v. Sapp, 5 Cir. 1974, 502 F.2d 34. Indeed, its usefulness in the civil rights area was foreseen by the drafters of the revised rule. Advisory Committee’s Note, 39 F.R.D. 73, 102 (1966). The general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement" }, { "docid": "846484", "title": "", "text": "“common” question and “typical” claims and have viewed an allegation of a general policy of discrimination to be sufficient to allow joinder of claims alleging different manifestations of that single underlying policy. See Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); Piva v. Xerox, supra, 70 F.R.D. 384-87, and eases cited therein. In this respect, it is relevant that in three relatively recent cases in this district, classes similar to the one sought here have been certified. See Kohn v. Royall, Koegel & Wells, supra; Leisner v. New York Telephone Co., supra; Hecht v. Cooperative for Amer. Relief Everywhere, Inc., supra. But see O’Connell v. Teachers College, 63 F.R.D. 638 (S.D.N.Y. 1974). It is questionable whether the Rule 23(a)(3) requirement that plaintiffs’ claims be “typical” of those of the class has any meaning independent of Rule 23(a)(2) (common question) or (a)(4) (adequate representation). See Moore’s Federal Practice, ¶ 123.06-2. In attempting to give meaning to this provision a number of cases have held that it requires would-be class representatives to establish that the existence of a class needing representation is more than a hypothetical situation and that there are, in fact, other individuals with similar grievances. See, e. g., Wright v. Stone Container Corp., 524 F.2d 1058,1062 (8th Cir. 1976); Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268-70 (10th Cir. 1975). The factual allegations raised in the complaint and the statistical evidence put forward (which tends to show that women at Chase are segregated into lower-paying positions) certainly demonstrate that plaintiffs’ class allegations regarding official, managerial, and professional positions may be based on more than mere speculation. However, plaintiffs seek to represent not only women in management level positions but “all females” who are, have been, or may be employed by the corporate defendants. Such a class would include bank tellers, clericals, maintenance personnel and a multitude of other positions. All of the named plaintiffs were employed in or were seeking professional, managerial, or official positions and there is simply no indication that there is a class of individuals in lower graded positions who" }, { "docid": "10935440", "title": "", "text": "right to use the class action device. Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir.1976), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). In its March 21 ruling tentatively certifying the plaintiffs’ proposed class, see note 1, supra, this Court found that the class satisfies all four criteria of Fed.R.Civ.P. 23(a) and the requirements of Rule 23(b)(2). A. Rule 23(a) Prerequisites Fed.R.Civ.P. 23(a) provides: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class. 1. Numerosity As noted earlier, at the class certification hearing on March 21, 1984 the parties stipulated that more than 23,000 Ohio residents who had previously been found to be entitled to SSDI and/or SSI benefits had their payments terminated during fiscal years 1981-1983. In addition, individuals potentially affected by future terminations under the standards challenged here include approximately 130,000 disabled Ohio workers who receive SSDI benefits and some 80,000 persons who receive SSI benefits. A class of several thousand satisfies all requirements of numerosity, Mader v. Armel, 402 F.2d 158 (6th Cir.1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1188, 22 L.Ed.2d 459 (1969); 7 Wright, Miller & Kane, Federal Practice and Procedure. Civil § 1762 (1972 & Supp.1983). Furthermore, upon consideration of all the circumstances relevant to the ease of joinder surrounding each case, Cash v. Swifton Land Co., 434 F.2d 569, 571 (6th Cir.1970); Rettig v. Kent City School District, 94 F.R.D. 12, 14 (N.D.Ohio 1980), it is clear that joinder of all class members would be impractical. 2. Commonality and Typicality The Supreme Court has observed that: The commonality and typicality requirements of Rule 23(a) tend to merge. Both" }, { "docid": "675415", "title": "", "text": "29, 1977, Democratic primary in the 10th ward in Providence. The class of 123 absentee and shut-in voters is sufficiently numerous as to make joinder impracticable. The class presents common questions of law, viz., whether or not these voters were deprived of their franchise exercise on March 29 by the subsequent action of defendant officials invalidating their ballots. The Court has found adequacy of representation. The class may be certified under Fed.R.Civ.P. 23(b)(2). The state defendants contended vigorously that the requirements of commonality and typicality were not met, that whether or not each member of the class “relied” on the representations of defendants and would have gone in person to the polls but for those representations is a question of fact peculiar to each individual which the Court must individually assess. By this argument, the defendants seek to reduce the class action device to a nullity. Obviously, individual members of any class rarely have precisely the same characteristics and differ in some respects. Class certification is in fact a legal fiction simplifying litigation, and making large-scale dispute resolution possible, by attributing to the members of the class the relevant characteristics of the named plaintiffs. See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2nd Cir. 1968); Driver v. Helms, 74 F.R.D. 382 at 403 (D.R.I.1977); cf. Lamphere v. Brown University, 71 F.R.D. 641, 645-48 (D.R.I.1976). Here the relevant factor is that all voters were informed of a right to cast absentee or shut-in ballots in the primary, and that some of those in fact requested and voted those ballots, which were counted and subsequently invalidated. This latter group is a proper class. Because the Court has accepted the uncontradicted testimony of the named members of the class that they would have rearranged their affairs to vote in person if they had known that to be the only way their vote would count, the Court must assume that this is true of all the members of the class except those produced by the defendants who testified otherwise. Not only is this assumption required by Rule 23, in the Court's" }, { "docid": "22291665", "title": "", "text": "candidate or not.” United States v. Classic, 313 U.S. 299, 318, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1940). While Griffin’s personal interests were and presently are parallel with the voters’, they are not necessarily identical— some voters voted for other candidates. We are unable to say that Griffin’s candidate status, and his attempted assertion of the absentee and shut-in voters’ claims, were enough to make him their actual personal representative whose action or non-action in the state proceeding would legally bind them. See Dudley v. Meyers, 422 F.2d 1389 (3d Cir. 1970). The absence of privity also prevents collateral estoppel from applying here. Collateral estoppel forecloses relitigation of an issue that was expressly argued in a prior action even though the causes of action are not identical. One such issue could be the Rhode Island court’s ruling that candidate Griffin had failed to prove that the outcome of the election would have been different had the Secretary not issued absentee and shut-in ballots. But as the plaintiffs were not in privity with Griffin, the state court’s ruling cannot estop them from relitigating that issue. See Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973). Certain inroads have in recent times been made upon the rule of mutuality as it relates to collateral estoppel, see, e. g, Blondertongue Laboratories, Inc. v. Univ. of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Cauefield v. Fid. & Cas. Co., 378 F.2d 876 (5th Cir.), cert. denied, 389 U.S. 1009, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967), but these are not applicable to the present facts. We hold, therefore, that neither res judi-cata nor collateral estoppel bars this action. (c) Class certification. McCormick challenges the district court’s certification under Fed.R.Civ.P. 23(b)(2) of the class “of all those who voted by absentee or shut-in ballot in the March 29, 1977, Democratic primary in the 10th Ward in Providence.” For the action to be so certified, it must satisfy the requirements of both subsections (a) and (b)(2) of Rule 23. Subsection (a) permits a class action “only if (1) the" }, { "docid": "22291671", "title": "", "text": "in this Rule 23(b)(2) action does not demand greater precision. See Senter v. General Motors Corp., supra, 532 F.2d at 525. Rule 23(b)(2) authorizes use of a class action where “the party opposing the class has acted . on grounds generally applicable to the class, thereby making appropriate final injunctive relief . . . with respect to the class as a whole.” [Emphasis supplied.] This action easily lends itself to that part of the rule; every member of the plaintiff class had his vote quashed simply because it was cast by absentee or shut-in ballot. “[T]he injunctive relief referred to [in the rule] does not require that the district court look into the particular circumstances of each member of the class.” 3B Moore’s Federal Practice, ¶ 23.40 at 23-653, -654 (1977). Actions under Rule 23(b)(2) may be more rough-hewn than those in which the court is asked to award damages; compare the notice and “opting-out” procedures prescribed for Rule 23(b)(3) actions, with the more flexible standards governing Rule 23(b)(2) suits. Fed.R.Civ.P. 23(c)(2), (3); 23(d). Given the fundamental right in question and the relief being sought, plaintiffs’ showing provided a sufficient basis for the district court’s determination that the named plaintiffs’ claims typified those of the class, and otherwise met the standards of Rule 23(b)(2). See Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972); see also Wetzel v. Liberty Mutual Life Insur., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). 2. The voters’ constitutional claim. Appellees do not contend that Rhode Island was constitutionally required to provide for absentee or shut-in voting in party primaries, see Fidell v. Board of Elections, 343 F.Supp. 913 (E.D.N.Y.), aff’d mem., 409 U.S. 972, 93 S.Ct. 310, 34 L.Ed.2d 236 (1972). Nor do they challenge the authority of the Rhode Island Supreme Court to construe the state’s election laws so as to preclude such voting. Their claim is simply that Rhode Island could not, constitutionally, invalidate the absentee and shut-in ballots that state officials had offered to the voters in this primary, where the effect" }, { "docid": "22020352", "title": "", "text": "set forth in Correction Law § 213 is so vague that it impermissibly vests the Parole Board with unfettered discretion necessarily involves common issues of law and fact, ((a)(2) of Rule 23). Moreover, although the Parole Board’s decisions in individual cases of course involve facts peculiar to each prisoner, all plaintiffs have a common interest in assuring that the Board’s decisions are made in a consistent, fair and rational manner. The fact that the Board grants parole to some inmates and denies it to others is not controlling. The question in all instances is whether the decisions are made on an objective and rational basis. Where, as alleged, all class members suffer in the same way from defendants’v. practices, common issues predominate and the requirements of Rule 23(a)(2) are met. Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971); Cortright v. Resor, 325 F.Supp. 797, 808 (E.D.N.Y.1971), rev’d on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1975); Accord Escalara v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970); Norwalk C. O. R. E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); Perez v. Lavine, 378 F.Supp. 1390 (S.D.N.Y.1974). This case is therefore unlike the situation in Dale v. Hahn, 440 F.2d 633, 640 (2d Cir. 1971), cited by defendants where class relief was denied because plaintiffs experienced different treatment with regard to the specific deprivations of procedural due process alleged in the complaint. (Lack of notice and opportunity for a hearing) The named plaintiffs also present claims which are typical of the class they seek to represent ((a)(3) Rule 23). The fact that some members of the class are personally satisfied with Parole Board decisions and may prefer to leave the violation of their rights unremedied is not conclusive as to a determination of typicality under Rule 23. Norwalk C. O. R. E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968);" }, { "docid": "14959074", "title": "", "text": "class so that his actions may be viewed as part of a pattern of activity. E. g., Griffin v. Burns, 570 F.2d 1065,1074 (1st Cir. 1978); Bermudez v. United States Department of Agriculture, 490 F.2d 718, 725 (D.C.Cir.), cert. denied, 414 U.S. 1104, 94 S.Ct. 737, 38 L.Ed.2d 559 (1973). All the class members need not be aggrieved by or desire to challenge the defendant’s conduct in order for one or more of them to seek relief under rule 23(b)(2). What is necessary is that the challenged conduct or lack of conduct be premised on a ground that is applicable to the entire class. 3B Moore’s Federal Practice ¶ 23.40[2], at 23-290 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1775, at 21 (1972); Davis v. Weir, 497 F.2d 139, 146 (5th Cir. 1974). The primary limitation on the use of (b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for class members. This requirement does not preclude the award of monetary recoveries on a class-wide basis when monetary relief for class members is either part of the equitable relief granted or is secondary or ancillary to the predominant injunctive or declaratory relief sought. H. Newberg, Class Actions §§ 1145a, 1145b, at 242-43 (1977); 3B Moore’s Federal Practice ¶ 23.40[4], at 23-304 to 23-305 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1775, at 22 (1972). Although plaintiff does request compensatory and punitive damages, the court considers this relief either incidental or equitable in nature. Therefore, this action comes within rule 23(b)(2). Accordingly, this action shall be maintained as a class action under rule 23(b)(2) on behalf of a plaintiff class consisting of all black and female employees of the Chicago District Office of the Internal Revenue Service of the United States Department of the Treasury at any time after January 23, 1976 who were denied promotion opportunities because of their race or sex. It is so ordered. . Defendants contend that evidence plaintiff relies on does not establish the existence of a class of which plaintiff" }, { "docid": "12335731", "title": "", "text": "found that the prerequisites of Rule 23(a) had been satisfied, and certified the litigation for class disposition, but, in issuing class-wide preliminary injunctive relief, ruled that “[u]ntil such time as it appears to be inappropriate, the class shall consist of users of water furnished by the City . . . who do not have a contract with the city for water service in their own name.” The final judgment which is the subject of this appeal granted permanent injunctive relief to a class of plaintiffs that was redefined to include “all present and future non-commercial users of water service provided by the City of Atlanta, Department of Water Works.” 359 F.Supp. at 1028. The district court further determined that this cause could proceed as a Rule 23(b)(2) class action. The first prerequisite of such an action demands that “the party opposing the class has acted or refused to act on grounds generally applicable to the class.” This language does not mandate that all members of the (b)(2) class be aggrieved by or desire to challenge the defendant’s conduct. See, e. g., Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). It does require, however, that the conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1775 (1972). Courts have restated this requirement in such terms that the class representative must be a member of, similarly situated to, or possess standing to assert the claims of, the entire class, be able to protect its interests fairly and adequately, and present claims or de fenses which are typical of the claims or defenses of the class. The second prerequisite of such an action is satisfied if final injunctive relief for the class as a whole is appropriate. Properly restricted to Atlanta water consumers without accounts for water service in their own names, this class action meets the requirements of Rule 23(b) (2). It is conceivable, however, that many members of a class defined to encompass" }, { "docid": "13342108", "title": "", "text": "together cannot support individual standing. Therefore plaintiffs have individual standing only with respect to discriminatory hiring practices in the labor service. B. Standing as Representatives of a Class Plaintiffs also seek to represent a class of employees, applicants, and would-be applicants, a class which includes those who have suffered discrimination in official service jobs. Plaintiffs’ class allegations shift the proper focus of inquiry from questions of standing to questions of class certification. Because of the close similarity between the commonality and typicality requirements of Rule 23(a), Fed.R.Civ.P., and the injury in fact requirements of standing doctrine, the role of standing in the class context is a complex and highly confused issue. See, e. g., 3B Moore’s Federal Practice ¶ 23.04[2]. No matter how narrow a view they may have of the proper scope of a class action under Title VII, few courts have confined the class to only those individuals who have suffered injury of precisely the same kind as the named plaintiff. See, e. g., Hill v. Western Elec. Co., Inc., 4 Cir. 1979, 596 F.2d 99, 102; Senter v. General Motors Co., 6 Cir. 1976, 532 F.2d 511, 524-25, cert. denied, 1976, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150; Beasley v. Griffin, D.Mass.1979, 81 F.R.D. 114, 116-17; White v. Gates Rubber Co., D.Colo.1971, 53 F.R.D. 412, 413-15. Title VII lawsuits are often, by their very nature, class suits, involving class-wide wrongs; hence it is improper to limit an individual plaintiff to class relief on only those particular claims with respect to which he has satisfied the technical standing requirements. See, East Texas Motor Freight v. Rodriguez, 1977, 431 U.S. 395, 405-06, 97 S.Ct. 1891, 52 L.Ed.2d 453. On the other hand, it is equally improper to permit a plaintiff to represent a class with which he shares only a very remote interest. Rodriguez, supra, at 403-04, 97 S.Ct. 1891; Hill, supra, at 101-02; Kulkarni v. Nyquist, N.D.N.Y.1977, 446 F.Supp. 1269. The focus of inquiry must be on the nexus between the individual claims of the named plaintiff and other, different, claims of class members in order" }, { "docid": "4079586", "title": "", "text": "is so numerous that joinder of all members is impracticable, and therefore the numerosity requirement is met. See Fed.R.Civ.P. 23(a)(1). D. Adequacy of Representation Rule 23(a)(4) permits certification of a class action only if “the representative parties will fairly and adequately protect the interests of the class.” Fed.R. Civ. P. 23(a)(4). This factor requires: (1) that the proposed representative plaintiffs do not have conflicts of interest with the proposed class, and (2) that plaintiffs are represented by qualified and competent counsel. See Dukes, 509 F.3d at 1185. Adequacy of representation “depends on the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.” Brown v. Ticor Title Ins., 982 F.2d 386, 390 (9th Cir.1992) (citations omitted). Defendants argue that there is “irreconcilable” antagonism within the class and therefore plaintiffs are not adequate class representatives. Defendants claim that the declarations they submit in opposition to class certification “highlight the irreparable antagonism between the purported class of all blind Californians, between the class of all mobility impaired Californians, and between the vision-impaired and mobility-impaired class members.” Opp’n at 22. Specifically, defendants argue that there are “people in the vision-impaired community who believe that the installation of curb ramps [allegedly favored by the mobility-impaired] on corners are unnecessary for access,” and that there are “individuals of the mobility-impaired community who are opposed to the installation of yellow tactile domes [allegedly favored by the vision-impaired] at curb ramps.” Opp’n at 23. “Such antagonism,” defendants aver, “destroys Plaintiffs’ purported class.” Id. This argument is inapposite. A difference of opinion about the propriety of the specific relief sought in a class action among potential class members is not sufficient to defeat certification. See 1 Newberg on Class Actions § 3:30 (“As a general rule, disapproval of the action by some class members should not be sufficient to preclude a class action on the ground of inadequate representation”); see also Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968) (holding that, where a complaint alleged discrimination against" }, { "docid": "22291666", "title": "", "text": "state court’s ruling cannot estop them from relitigating that issue. See Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973). Certain inroads have in recent times been made upon the rule of mutuality as it relates to collateral estoppel, see, e. g, Blondertongue Laboratories, Inc. v. Univ. of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Cauefield v. Fid. & Cas. Co., 378 F.2d 876 (5th Cir.), cert. denied, 389 U.S. 1009, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967), but these are not applicable to the present facts. We hold, therefore, that neither res judi-cata nor collateral estoppel bars this action. (c) Class certification. McCormick challenges the district court’s certification under Fed.R.Civ.P. 23(b)(2) of the class “of all those who voted by absentee or shut-in ballot in the March 29, 1977, Democratic primary in the 10th Ward in Providence.” For the action to be so certified, it must satisfy the requirements of both subsections (a) and (b)(2) of Rule 23. Subsection (a) permits a class action “only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Subsection (b)(2) requires that “the party opposing the class ha[ve] acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” With 123 voters as potential plaintiffs and only limited time to act, the district court did not err in finding that joinder of all class members would be impracticable. The court also properly discerned a question of law or fact common to the voters of the class, i. e., whether the retroactive invalidation of ballots cast in an officially-endorsed manner amounted to a constitutional violation. It is a closer question whether the named plaintiffs’ claims were “typical”, and" }, { "docid": "12335732", "title": "", "text": "the defendant’s conduct. See, e. g., Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). It does require, however, that the conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1775 (1972). Courts have restated this requirement in such terms that the class representative must be a member of, similarly situated to, or possess standing to assert the claims of, the entire class, be able to protect its interests fairly and adequately, and present claims or de fenses which are typical of the claims or defenses of the class. The second prerequisite of such an action is satisfied if final injunctive relief for the class as a whole is appropriate. Properly restricted to Atlanta water consumers without accounts for water service in their own names, this class action meets the requirements of Rule 23(b) (2). It is conceivable, however, that many members of a class defined to encompass “all present and future non-commercial users of water service provided by the City,” which could easily include every resident of Atlanta, would harbor interests antagonistic to those advanced by the individual plaintiffs. See Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.), vacated and dismissed as moot, 409 U.S. 815, 93 S.Ct. 66, 34 Ed.2d 72 (1972). Moreover, in view of the fact that all Atlanta water users who receive service on their own account are already entitled to pre-termination notice by city ordinance and are not aggrieved by the City’s practices under Section 33-129, the class description and relief are overly inclusive. Davis was aggrieved by and seeks to invalidate the Department’s refusal to furnish water service upon his application by virtue of his landlord’s unpaid water bill. The defendant has indicated a similar unwillingness to act with regard to all persons who have not contracted for water service in their own names. Thus, the breadth of the issue joined defines the proper breadth of the class. Davis and the intervenors were" }, { "docid": "14959073", "title": "", "text": "on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Two basic requirements must be met in order for an action to fall within rule 23(b)(2): first, the party opposing the class must have acted or refused to act on grounds “generally applicable” to all class members; and second, final injunctive or corresponding declaratory relief must be appropriate. H. Newberg, Class Actions § 1145, at 239 (1977); Wright & Miller, Federal Practice & Procedure: Civil § 1775, at 19 (1972). Defendants contend that plaintiff has not satisfied subdivision (b)(2) because the alleged disparate effect of the Revenue Agent Training Program has no general application to the blacks and women denied promotions for other reasons and because plaintiff has failed to identify an employment policy generally applicable to the class. The court does not agree. The courts have interpreted the first requirement to mean that the party opposing the class must have acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity. E. g., Griffin v. Burns, 570 F.2d 1065,1074 (1st Cir. 1978); Bermudez v. United States Department of Agriculture, 490 F.2d 718, 725 (D.C.Cir.), cert. denied, 414 U.S. 1104, 94 S.Ct. 737, 38 L.Ed.2d 559 (1973). All the class members need not be aggrieved by or desire to challenge the defendant’s conduct in order for one or more of them to seek relief under rule 23(b)(2). What is necessary is that the challenged conduct or lack of conduct be premised on a ground that is applicable to the entire class. 3B Moore’s Federal Practice ¶ 23.40[2], at 23-290 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1775, at 21 (1972); Davis v. Weir, 497 F.2d 139, 146 (5th Cir. 1974). The primary limitation on the use of (b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for class members. This requirement does not preclude the award of monetary recoveries on a class-wide" }, { "docid": "675416", "title": "", "text": "large-scale dispute resolution possible, by attributing to the members of the class the relevant characteristics of the named plaintiffs. See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2nd Cir. 1968); Driver v. Helms, 74 F.R.D. 382 at 403 (D.R.I.1977); cf. Lamphere v. Brown University, 71 F.R.D. 641, 645-48 (D.R.I.1976). Here the relevant factor is that all voters were informed of a right to cast absentee or shut-in ballots in the primary, and that some of those in fact requested and voted those ballots, which were counted and subsequently invalidated. This latter group is a proper class. Because the Court has accepted the uncontradicted testimony of the named members of the class that they would have rearranged their affairs to vote in person if they had known that to be the only way their vote would count, the Court must assume that this is true of all the members of the class except those produced by the defendants who testified otherwise. Not only is this assumption required by Rule 23, in the Court's view, it is required by the very nature of the right to vote: The right to vote on an equal basis with other citizens is a fundamental right in a free society; indeed, in any viable form of representative government. It is preservative of all governmental rights. Yick Wo. v. Hopkins, 1886, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220, 226. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Harman v. Forssenius, 1965, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50, 57 (poll tax). Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973). See also Reynolds v. Sims, 377 U.S. 533, 554-561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The defendants would have this Court presume that each of the 123 absentee or shut-in voters not called by the plaintiffs to testify would have waived their fundamentally important right to vote for reasons of convenience—a" }, { "docid": "22020353", "title": "", "text": "Escalara v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970); Norwalk C. O. R. E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); Perez v. Lavine, 378 F.Supp. 1390 (S.D.N.Y.1974). This case is therefore unlike the situation in Dale v. Hahn, 440 F.2d 633, 640 (2d Cir. 1971), cited by defendants where class relief was denied because plaintiffs experienced different treatment with regard to the specific deprivations of procedural due process alleged in the complaint. (Lack of notice and opportunity for a hearing) The named plaintiffs also present claims which are typical of the class they seek to represent ((a)(3) Rule 23). The fact that some members of the class are personally satisfied with Parole Board decisions and may prefer to leave the violation of their rights unremedied is not conclusive as to a determination of typicality under Rule 23. Norwalk C. O. R. E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); 3 B Moore, Federal Practice ¶ 23.06-2. Moreover, defendants’ contention that plaintiffs are neither typical nor representative of their class ((a)(4) of Rule 23) because “in a mathematical sense [they] do not realistically represent the segments of the . . . inmate population” misconstrues the purpose behind the requirements of Rule 23(a)(3) and (4). Mere numbers or percentages are not controlling factors in determining the appropriateness of a class, 3B Moore, Federal Practice, ¶ 23.07[4]; the quality of the representation is the significant criterion. Leisner v. New York Telephone Company, 358 F.Supp. 359, 372 (S.D.N.Y.1973); C. Wright, Federal Courts § 72 (1970). Defendants offer no reasons other than the one mentioned why the named plaintiffs will not adequately present the claims of the class. Plaintiffs’ counsel is experienced in class action suits for prisoners, serious of purpose, adequately financed, and has extensive experience in the field of prisoners’ rights in general and parole in particular. Plaintiffs therefore satisfy the requirements of typicality and fair representation under Rule 23(a)(3) and (4). Finally, plaintiffs’ allegations fit the" }, { "docid": "22291668", "title": "", "text": "whether those plaintiffs could fairly and adequately represent the class. Fed.R.Civ.P. 23(a)(3) and (a)(4). The named plaintiffs were all Griffin supporters, whose attorney had formerly represented Griffin. While these facts assured vigorous representation, see Gonzalez v. Cassidy, 474 F.2d 67, 72, 75 (5th Cir. 1973), a few — though only a few — of the absentee and shut-in voters had supported candidates other than Griffin and therefore might have preferred both to let stand the machine count of the March primary and to be represented by others than Griffin’s supporters and counsel. But not all class members need “be aggrieved by or desire to challenge defendant’s conduct in order for some to seek relief under (b)(2).” 7A Wright and Miller, Federal Practice and Procedure, Civil: § 1775 at 21 (1972); Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); see Senter v. General Motors Corp., 532 F.2d 511, 523-25 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). The vast majority of those who voted by absentee and shut-in ballot supported Griffin, and would presumably have favored a new election: 111 of the 123 such votes were cast for Griffin, and only six for McCormick, with the remaining votes being divided between candidates Clement and Fayerweather. And even persons who supported McCormick having suffered the loss of their ballots, shared with the other class members the legal injury complained of here. McCormick further argues that Morrow’s and Green’s claims were not “typical”, since not all of the class were shown to have been willing and able to vote in person had there been no absentee ballots. Not all, in other words, relied to their detriment upon the officially issued ballots. The district court resolved this question by declining to presume that members of the plaintiff class “would have waived their fundamentally important right to vote for reasons of convenience”, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Fuentes v. Shevin, 407 U.S. 67, 94-96 &" }, { "docid": "675414", "title": "", "text": "Taking into account the grave nature of the issues at hand, and the crucial importance of quickly resolving public uncertainty created where elections have been postponed, see e. g., McGill v. Ryals, 253 F.Supp. 374, 377 (M.D.Ala.) (three-judge court), appeal dismissed, 385 U.S. 19, 87 S.Ct. 212, 17 L.Ed.2d 17 (1966); cf. Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606, 610 (4th Cir. 1970), the Court is certain that the remaining candidates were not indispensible and that the action properly proceeded without them. It should also be noted that none of these candidates, whom the state believes are so interested as to require joinder, made any attempt to intervene in this Court. Indeed, considering that the election seems clearly to have turned into a “two-horse race”, their failure to participate is not surprising. B. Plaintiffs moved orally to certify a class, and the Court granted the motion in open court. The class certified is the class of all those who voted by absentee or shut-in ballot in the March 29, 1977, Democratic primary in the 10th ward in Providence. The class of 123 absentee and shut-in voters is sufficiently numerous as to make joinder impracticable. The class presents common questions of law, viz., whether or not these voters were deprived of their franchise exercise on March 29 by the subsequent action of defendant officials invalidating their ballots. The Court has found adequacy of representation. The class may be certified under Fed.R.Civ.P. 23(b)(2). The state defendants contended vigorously that the requirements of commonality and typicality were not met, that whether or not each member of the class “relied” on the representations of defendants and would have gone in person to the polls but for those representations is a question of fact peculiar to each individual which the Court must individually assess. By this argument, the defendants seek to reduce the class action device to a nullity. Obviously, individual members of any class rarely have precisely the same characteristics and differ in some respects. Class certification is in fact a legal fiction simplifying litigation, and making" }, { "docid": "846483", "title": "", "text": "and its subsidiaries have engaged in a pattern or practice of discrimination against women in the area of professional, managerial, and official positions. The fact that plaintiffs’ complaint involves “particularized allegations” and that hiring and pro motion decisions of the sort here hinge upon a variety of “subjective factors” would be true of any case involving professional level employment; such factors cannot serve to immunize discriminatory practices in professional fields from attack on a class basis. See Senter v. General Motors, 532 F.2d 511, 529 (6th Cir. 1976); Piva v. Xerox Corp., 70 F.R.D. 378 at 385-87 (N.D.Cal.1975). The common question here is not “whether one individual is better qualified than another, but whether that individual is considered less qualified, not because of his or her own worth, but because of discrimination forbidden by Title VII.” Kohn v. Royall, Koegel & Wells, supra, 59 F.R.D. at 521. Although there is some support for defendants’ position, the majority of the courts of appeals and district courts have taken a liberal approach to the requirements of a “common” question and “typical” claims and have viewed an allegation of a general policy of discrimination to be sufficient to allow joinder of claims alleging different manifestations of that single underlying policy. See Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); Piva v. Xerox, supra, 70 F.R.D. 384-87, and eases cited therein. In this respect, it is relevant that in three relatively recent cases in this district, classes similar to the one sought here have been certified. See Kohn v. Royall, Koegel & Wells, supra; Leisner v. New York Telephone Co., supra; Hecht v. Cooperative for Amer. Relief Everywhere, Inc., supra. But see O’Connell v. Teachers College, 63 F.R.D. 638 (S.D.N.Y. 1974). It is questionable whether the Rule 23(a)(3) requirement that plaintiffs’ claims be “typical” of those of the class has any meaning independent of Rule 23(a)(2) (common question) or (a)(4) (adequate representation). See Moore’s Federal Practice, ¶ 123.06-2. In attempting to give meaning to this provision a number of cases have held that it requires would-be class representatives to" } ]

[ { "docid": "6501873", "title": "", "text": "the dismissal of the action constitutes an abuse of discretion. Instead, Naartex argues, the district court should have transferred the case to Wyoming, where personal jurisdiction and venue would lie. We note, to begin with, that venue for this action does not lie in the District of Columbia. When, as here, subject matter jurisdiction “is not founded solely on diversity of citizenship,\" venue lies only in “the judicial district where all defendants reside, or in which the claim arose .... ” 28 U.S.C. § 1391(b). Because no defendants in this action, except perhaps the Secretary of Interior, reside in the District of Columbia, and because Naartex’s claim did not arise in the District of Columbia, venue does not lie here. Naartex nevertheless asserts that the district court was obliged to transfer this case pursuant to 28 U.S.C. § 1406(a), which provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” A court may transfer a case to another district even though it lacks personal jurisdiction over the defendants. See, e.g., Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962). The decision whether a transfer or a dismissal is in the interest of justice, however, rests within the sound discretion of the district court. See, e.g., Cook v. Fox, 537 F.2d 370, 371 (9th Cir.1976); Hayes v. RCA Service Co., 546 F.Supp. 661, 665 (D.D.C.1982). See generally 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3827, at 170 (1976). We find that the district court did not abuse its discretion by dismissing this action, because, as explained below, Naartex failed to show that its claims—both the implied statutory right of action and the common law fraud claims— could properly be heard in any federal court. In light of the substantive problems with its asserted claims, Naartex’s additional objection that the case should have been" } ]

[ { "docid": "11675553", "title": "", "text": "held by other descendants of the artist. Mr. Hutchinson has moved to strike the supplemental authority under Fed. R.App. P. 28(j) as irrelevant and argumentative. He has also submitted a request that we take judicial notice of the petition for rehearing now pending in the case. Neither party indicates whether an E.M.J. Betty, finished or unfinished, was ever included in the collection addressed by the Spanierman decision. In any event, because our analysis of Mr. Hutchinson’s standing does not depend on legal ownership issues but, rather, the practical unavailability of the painting, Spanierman is immaterial to our holding. The motion to strike and request to take judicial notice are therefore denied as moot. Second, as noted above, the Pfeils sold their E.M.J. Betty, and now Mr. Hutchinson has submitted a request that this court conduct proceedings to determine the identity of the undisclosed purchasers, so that he can add them as appel-lees. Mr. Hutchinson’s lack of standing, which is dispositive of this case, does not turn on the identity of the present owners of the Pfeils’ E.M.J. Betty. His request is therefore denied. Conclusion The appeal of intervenor-appellant Hope Cobb is DISMISSED as untimely. The appeal of the proposed plaintiffs-appellants is DISMISSED for lack of appellate standing. With regard to the appeal of plaintiff-appellant Thomas R. Hutchinson, the judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED in all respects. For reasons explained above, all pending motions are DENIED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted on the briefs without oral argument. Mr. Hutchinson insists that we should not consider appellees' answer brief, because it was filed six days after the deadline set by Fed. R.App. P. 31(a)(1). It is, however, always within this court’s discretion to permit the late filing of a brief for good cause. See Fed. R.App. P. 26(b). The exercise of that discretion is especially appropriate here," }, { "docid": "22968916", "title": "", "text": "PER CURIAM: The appellant in this case asks us to reconsider our order of January 6, 1997, dismissing his appeal for lack of jurisdiction. We issued this order because the appellant filed his notice of appeal after the time allotted by Fed. R.App. P. 4(a)(1). Upon reconsideration, we vacate our earlier order and remand to the district court for a determination of whether the time for the appellant to file his notice of appeal should be reopened pursuant to Fed. R.App. P. 4(a)(6). The appellant, proceeding pro se, seeks to appeal the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. We originally dismissed this appeal for lack of jurisdiction because the appellant filed his notice of appeal more than sixty days after the entry of the district court’s order denying Ms motion. The order was entered on June 19, 1996. Pursuant to Fed. R.App. P. 4(a)(1), the appellant had until August 19, 1996, to file a notice of appeal. The appellant’s notice of appeal bore a certificate of service dated August 28, 1996, and was filed by the district court on August 30, 1996. For Rule 4(a)(1) purposes, his notice of appeal is deemed filed on the date he delivered it to prison authorities, which we assume was August 28,1996, several days after the rule 4(a)(1) deadline. See Houston v. Lack, 487 U.S. 266, 271-72, 108 S.Ct. 2379, 2382-83, 101 L.Ed.2d 245 (1988). Citing Fed.R.Civ.P. 77(d), we held that lack of notice of entry of an order does not excuse the failure to file a timely notice of appeal. We then noted that we customarily treat a late notice of appeal in a criminal case as a motion for an extension of time pursuant to Fed. R.App. P. 4(b) and remand the case to the district court for a determination of excusable neglect. See, e.g., United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir.), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983). We declined to remand in this case, however, because in civil actions, a" }, { "docid": "8024197", "title": "", "text": "and (2) to defraud union members of their right to secret ballots and to participate in a fair and honest election regarding the merger referendum. Ruling that this count failed to allege a fraudu lent scheme to obtain “property,” the district court dismissed it, relying on McNally v. United States, which overturned a mail fraud conviction that rested on the theory that the defendants deprived a state’s citizens and government of the right to have the state’s affairs conducted honestly. 483 U.S. at 361, 107 S.Ct. at 2882. In McNally, the Court held that when enacting the mail fraud statute, Congress intended to prevent the use of the mails in furtherance of schemes to defraud others of money or “property” as traditionally defined, not of the “intangible” right to an honest and impartial government. 483 U.S. at 356-59, 107 S.Ct. at 2879-81. The government filed an interlocutory appeal, challenging the district court’s dismissal of the mail fraud count. On January 13, 1995, we reversed the district court and reinstated the count, ruling that the referendum ballots and the information they contained did in fact constitute “property” protected under section 1341. United States v. DeFries, 43 F.3d 707, 711 (D.C.Cir.1995). Pursuant to D.C. Circuit Rule 41, we withheld issuance of our mandate until seven days after disposition of any timely petition for rehearing. See D.C.CiR. R. 41. Three weeks later, on February 7, the government moved for expedited issuance of our mandate, pointing out that the district court was almost ready to swear a jury. The next day, appellants filed an opposition to the government’s motion to expedite as well as a petition for rehearing and a suggestion for rehearing en banc. Rather than issuing our mandate on February 10, we ordered the government to respond to appellants’ pending rehearing petitions. On February 10, the government filed its reply to appellants’ opposition to expedited issuance of the mandate, and on February 14 asked the district .court to consider delaying empaneling the jury until this court issued its mandate. The district judge and counsel for the government discussed the implications of the" }, { "docid": "8036323", "title": "", "text": "JUDGMENT PER CURIAM. This cause came to be heard on the record on appeal from the United States District Court for the District of Columbia, and was briefed and argued by counsel. On consideration thereof, it is ORDERED and ADJUDGED, by this Court, that the judgment of the District Court appealed from in this cause is hereby affirmed. It is FURTHER ORDERED, by this Court, that the district court’s memorandum opinion in May v. Shuttle, Inc., No. 94cv01019, 1996 WL 774536 (D.D.C. Sept. 5, 1996) is hereby published as if it were an opinion of our court. We note, however, that the collective bargaining agreement between Trump Shuttle, Inc. and the International Association of Machinists and Aerospace Workers expired on December 31, 1989. Thereafter, the only function the agreement could have performed would have been to serve as the temporary “status quo” while the parties pursued the “major dispute” collective bargaining procedures of Sections 5 and 6 of the Railway Labor Act. But for the reasons made clear by the district court, Shuttle could have been under no obligation to engage in such bargaining in the absence of a certified representative with which to bargain. Therefore it is unnecessary for us to decide whether any terms of a collective bargaining agreement may survive the loss of union representation (an issue which we previously addressed in passing). See Association of Flight Attendants v. United Airlines, Inc., 71 F.3d 915, 918 (D.C.Cir.1995). It is FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. R. 41(a)(1) (January 1, 1994). This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown. ATTACHMENT UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Issued Sept. 5, 1996 Civil Action No. 94-1019(NHJ) James May, et al., Plaintiffs, v. Shuttle, Inc., et al., Defendants. MEMORANDUM OPINION Plaintiffs are eighty-six former USAir Shuttle fleet service workers. The five defendants are" }, { "docid": "3177230", "title": "", "text": "ON MOTION TO DISMISS APPEAL AND TO DISMISS PETITION FOR REHEARING EN BANC Before REAVLEY, SMITH and DeMOSS, Circuit Judges. PER CURIAM: The defendants filed, on January 3, 2002, an unopposed motion “to dismiss all proceedings before this Honorable Court,” and specifically to dismiss the petition for rehearing en banc. The motion presumably is filed pursuant to Fed. R.App. P. 42 and 5th Cm. R. 42. The motion states, in its text and as reflected in an attached judgment of the district court entered on November 19, 2001, that the parties have settled all ■ claims and controversies and that the district court has approved the settlement and has dismissed all claims with prejudice. The funds agreed to in settlement have been paid. No party requested vacatur of the panel opinion as a condition of the settlement. See generally U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). As the motion to dismiss states, the settlement became final on December 19, 2001. Pending at that time was plaintiffs’ petition for rehearing en banc, filed on October 3, 2001. As reflected in the public docket sheet, the mandate of this court had been held by one or more judges, although when the motion to dismiss was filed, no judge had requested that the court be polled on rehearing en banc. On November 16, 2001, the court had requested defendants to file a response to the en banc petition. The motion to dismiss thus was filed under somewhat unusual circumstances. No provision of the Federal Rules of Appellate Procedure or the local rules of this court specifically addresses the instant situation. We conclude, however, that 5th Cir. R. 42.1 does not authorize the clerk to enter an order of dismissal while the mandate has been held, because that rule states in part that the clerk shall enter the order of dismissal “as the mandate.” We need not address whether the panel may enter an order of dismissal on an unopposed motion while the mandate is held, because, contemporaneously with this order, the judge" }, { "docid": "11435437", "title": "", "text": "the letter invited McKeithan to correct the counselor’s characterization of his claim if he thought it mistaken. He did not respond, and the investigation proceeded, focusing solely on McKeithan’s claim of age discrimination. During the course of the investigation, McKeithan signed an affidavit stating, among other things, his understanding that only a claim of age discrimination was at issue. In short, despite multiple opportunities to present his retaliation claim to the EEO counselor, McKeithan never did so. This court is thus bound by Hamilton to affirm its dismissal. See 666 F.3d at 1349-51. Because we affirm the dismissal for McKeithan’s failure to exhaust his administrative remedies, we need not consider the district court’s determination that the retaliation claim also fails as a matter of law. We note, however, that the district court rested its determination on Little v. United Techs., Carrier Transicold Div., 103 F.3d 956 (11th Cir.1997), which it mistakenly cited as a decision of this court. Little is, in fact, a decision of the Eleventh Circuit. This court has yet to consider whether a single offensive comment can create a hostile workplace environment. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold the issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. R. 41." }, { "docid": "8400066", "title": "", "text": "the bankruptcy court’s dismissal of Padilla’s petition pursuant to § 707(a) was improper. The Bankruptcy Court’s discharge of Padilla’s debts in bankruptcy is void, the BAP’s decision is affirmed, and the case is remanded for further proceedings consistent with this opinion. AFFIRMED. . Where the Bankruptcy Rules concerning appeals to the Bankruptcy Appellate Panel and the Ninth Circuit Bankruptcy Appellate Panel Rules are silent as to a particular matter of practice before the BAP, the BAP may apply the Rules of the United States Court of Appeals for the Ninth Circuit, the Federal Rules of Appellate Procedure, or any relevant rule of the Supreme Court. See 9th Cir. Bankr. App. Panel R. 13. (note: this rule, though in effect when the BAP mandate issued, has been superseded by 9th Cir. Bankr. App. Panel R. 8018(b)-1 which incorporates changes that are not pertinent here). Both the Bankruptcy Rules and the Ninth Circuit Bankruptcy Appellate Panel Rules are silent regarding the timing for issuance of mandates. The BAP therefore applies Federal Rule of Appellate Procedure 41 which requires issuance of a mandate seven days after the time to file a petition for rehearing expires. See Fed. R.App. P. 41(b). Since a motion for rehearing must be filed within ten days after entry of the BAP’s judgment, see Bankr.R. 8015, the BAP’s mandate, issued on the 28th day after entry of judgment, was appropriately and not prematurely issued. . See 11 U.S.C.- § 1112(b); 11 U.S.C. § 1307(c). . See Leavitt, 171 F.3d at 1224 (stating that bad faith, though not specifically listed, is a \"cause” for dismissal under 11 U.S.C. § [307(c)); Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994) (stating that a Chapter 13 petition filed in bad faith may be dismissed \"for cause” pursuant to 11 U.S.C. § 1307(c)); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828, 829 (9th Cir.1994) (affirming the bankruptcy court’s dismissal of a Chapter 11 debtor's petition pursuant to 11 U.S.C. § 1112(b) for \"cause” based on bad faith after noting that “[ajlthough section 1112(b) does not explicitly require that" }, { "docid": "23373740", "title": "", "text": "court determined that the judgment of conviction became final on June 12, 1997. Because that date is two days after this Court issued its mandate, we assume that the district court referred to the date on which our mandate was entered on the district court’s docket. .Torres argues that the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), should apply to his § 2255 motion and that the motion should be treated as if it had been directly filed with the district court on August 16, 1998, rather than on August 24, the date on which the district court indicated that the motion was filed. Because, under our holding today, Torres's § 2255 motion was untimely even if the mailbox rule applied to the motion, we need not address this argument. .Rule 13.1 of the Supreme Court Rules provides that a petition for certiorari is timely only if it is filed within 90 days of the entry of the judgment of a state court of last resort or the United States Court of Appeals. We note that the entry of judgment and the issuance of the mandate are separate events. \"A judgment is entered when it is noted on the docket.” Fed. R.App. P. 36. A petition for panel rehearing or rehearing en banc must be filed within 14 days after the entry of judgment. See Fed. R.App. P. 40(a)(1); 35(c). The mandate, which contains \"a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs,” is issued \"7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later.” Fed. R.App. P. 41(a) and (b). . The former version of § 2255 expressly provided that \"[a] motion for such [collateral] relief may be made at any time.” 28 U.S.C.A. § 2255 (West 1994). . The rest of that portion of § 2255 that" }, { "docid": "19746811", "title": "", "text": "JUDGMENT PER CURIAM. This petition for review of the Drug Enforcement Administration’s (DEA’s) denial of a petition for remission or mitigation of forfeited property was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. R. 36(b). It is ORDERED and ADJUDGED that the petition for review be denied. Petitioner Melvin Colon-Calderon’s sole contention in this court is that the DEA should have remitted or mitigated the forfeiture of his property because the notice of forfeiture that the agency sent him did not satisfy the requirements of the Due Process Clause. Even assuming such a claim can be raised directly in this court, cf. 18 U.S.C. § 983(e)(5), petitioner never raised this contention before the DEA, and we therefore will not consider it. See United Transp. Union v. Surface Transp. Bd., 114 F.3d 1242, 1244-45 (D.C.Cir.1997) (holding claim waived because petitioner did not raise it before the agency); see also Marine Mammal Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409, 413-14 (D.C.Cir.1998) (rejecting argument that constitutional issues are always excepted from exhaustion requirements and observing that “[ejxhaustion even of constitutional claims may promote many of the policies underlying the exhaustion doctrine”). The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41(a)(1)." }, { "docid": "8391855", "title": "", "text": "Opinion for the Court filed PER CURIAM. On Motion for Summary Affirmance and Motion for Summary Reversal PER CURIAM: This case is here on cross-motions for summary disposition. Melvin Yates brought this appeal pursuant to 28 U.S.C. § 636(c)(3) from an order of a magistrate judge dismissing his complaint against the District of Columbia, and others. See Yates v. District of Columbia, 224 F.Supp.2d 68 (D.D.C.2002). The complaint alleged that Yates had been em ployed as a guidance counselor in a public school, that his performance was not properly rated, and that he was wrongly terminated for incompetence. His termination, Yates claimed, “violated his constitutional rights to due process and was a taking of property without due process of law.” The complaint invoked 42 U.S.C. § 1983, which, together with its jurisdictional implementation (28 U.S.C. § 1343), treats the District of Columbia as a State and gives the district courts jurisdiction over civil actions to “redress the deprivation, under color of any State law, ... of any right, privilege or immunity secured by the Constitution of the United States.... ” See Best v. Kelly, 39 F.3d 328, 330 (D.C.Cir.1994). The case presents a few procedural tangles. Although the parties do not complain, the magistrate judge did not set forth the judgment on a separate document as Federal Rule of Civil Procedure 58 requires. Recent amendments to the Federal Rules of Appellate Procedure, not in effect when this appeal was taken, make clear that such a violation of Rule 58 will not affect the validity of an appeal from that judgment or order. Fed. R.App. P. 4(a)(7)(B). This is essentially the result the Supreme Court reached in Bankers Trust Co. v. Mollis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), for non-conforming judgments, when - as here - the appellee does not object. See Diamond v. McKenzie, 770 F.2d 225 (D.C.Cir.1985) (per curiam). We therefore have appellate jurisdiction. The next problem arises from the magistrate judge’s ordering the action dismissed with prejudice for lack of subject matter jurisdiction, on the grounds that Yates had no property right" }, { "docid": "19370495", "title": "", "text": "JUDGMENT PER CURIAM. Appellant’s claim under the Sixth Amendment right to counsel of choice was considered on the record on appeal from the United States District Court for the District of Columbia and was briefed by the parties and argued orally by counsel. On January 13,1989, we certified this question to the Supreme Court of the United States. United States v. Fafowora, 865 F.2d 360 (D.C.Cir.1989). On February 21, 1989, the Supreme Court dismissed the certified question. United States v. Fafowora, — U.S. -, 109 S.Ct. 1105, 103 L.Ed.2d 171 (1989). Therefore, this court has given the issue full consideration. It is ORDERED and ADJUDGED that appellant’s convictions be affirmed for the reasons stated In re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637 (4th Cir.1988) (en banc), cert. granted, — U.S. -, 109 S.Ct. 363, 102 L.Ed.2d 352 (1988). The clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See D.C.Cir.Rule 15. Chief Judge Wald would find that under the appropriate Sixth Amendment analysis the government's interest in seizing forfeitable assets to prevent their dissipation does not outweigh the defendant’s interest in using a reasonable portion of those assets, in the absence of other funds, to retain counsel of choice. See United States v. Monsanto, 852 F.2d 1400, 1402-04 (2d Cir.1988) (Opinion of Feinberg, C.J.); United States v. Unit No. 7 and Unit No. 8 of Shop In the Grove Condominium, 853 F.2d 1445 (8th Cir.1988)." }, { "docid": "15010793", "title": "", "text": "en banc, or motion for stay of mandate, whichever is later.” Fed. R.App. P. 41(b). The filing of a petition for rehearing in a court of appeals automatically stays the mandate until the petition for rehearing is decided. See Fed. R.App. P. 41(d)(1). As such, when a prisoner files a petition for rehearing in a court of appeals, its mandate does not issue, and its decision does not become final, until the petition for rehearing is denied. Importantly, as explained infra, the filing in the Supreme Court of a petition for rehearing of the denial of a petition for certio-rari has no effect on the finality of the judgment of conviction. . In addition to the decisions of the Tenth, Fifth, and Seventh Circuits, the Eleventh Circuit, in a brief per curiam opinion, also recently concluded that a prisoner’s judgment of conviction becomes final when the Supreme Court denies his petition for a writ of certiorari. See Washington v. United States, 243 F.3d 1299, 1300 (11th Cir.2001). . Segers contends that his case is distinct from those addressed by our sister circuits because, unlike the prisoners in those cases, he actually filed a petition for rehearing from the denial of certiorari. While this factual distinction is accurate, we nonetheless view the decisions of our sister circuits to be of substantial assistance. They make clear that, under Rule 16.3, the denial of a petition for certiorari renders a prisoner’s case final in the Supreme Court. . Segers also contends that the district court erred in dismissing his § 2255 motion without giving him the benefit of an extension for discovery under § 2255 ¶ 6(4). Pursuant to that sub-paragraph, the one-year period of limitation also can begin to run on \"the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Seg-ers claims that he discovered new facts and procured affidavits that were not available within one year of the Court’s initial denial of certiorari. We agree with the district court that his contentions are without merit, however, as his" }, { "docid": "8024198", "title": "", "text": "ballots and the information they contained did in fact constitute “property” protected under section 1341. United States v. DeFries, 43 F.3d 707, 711 (D.C.Cir.1995). Pursuant to D.C. Circuit Rule 41, we withheld issuance of our mandate until seven days after disposition of any timely petition for rehearing. See D.C.CiR. R. 41. Three weeks later, on February 7, the government moved for expedited issuance of our mandate, pointing out that the district court was almost ready to swear a jury. The next day, appellants filed an opposition to the government’s motion to expedite as well as a petition for rehearing and a suggestion for rehearing en banc. Rather than issuing our mandate on February 10, we ordered the government to respond to appellants’ pending rehearing petitions. On February 10, the government filed its reply to appellants’ opposition to expedited issuance of the mandate, and on February 14 asked the district .court to consider delaying empaneling the jury until this court issued its mandate. The district judge and counsel for the government discussed the implications of the fact that this court had not issued its mandate, expressing uncertainty as to the district court’s ability to proceed to trial on that count prior to the mandate’s issuance. When asked by the court, counsel for appellants said he thought the district court lacked jurisdiction absent the mandate, explaining that “the mandate is key here. And ... the court of appeals understands that.” Appellants’ counsel also explained why he thought this court delayed issuing the mandate: “[W]hat the court of appeals, I think, is looking at is the prospect that if it sends the mandate back and the case goes forward and then you’re in the midst of trial and they have to recall the mandate, then you have got real problems.” The district court took no action on the government’s request, but on February 21, once jury selection was completed, the district court again raised the question of our mandate. After confirming that the mandate had not issued, counsel for the government, citing United States v. Salerno, 868 F.2d 524 (2d Cir.1989), argued that" }, { "docid": "12301213", "title": "", "text": "ORDER PER CURIAM. Upon consideration of the motion (filed under seal) for release pending determination of appeal and the opposition thereto; the motion (filed under seal) to maintain material in appellant’s motion for release pending appeal under seal and the response thereto; the emergency motion to dismiss case as moot, the responses thereto, and the reply, it is ORDERED that the appellees’ emergency motion to dismiss as moot be granted for the reasons stated in the memorandum accompanying this order. It is FURTHER ORDERED that the appellees’ motion to maintain material in the appellants’ motion for release pending appeal and in the appellees’ response under seal be granted. It is FURTHER ORDERED that the motion for release pending appeal be dismissed as moot. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. MEMORANDUM I. The petitioners, ethnic Uighurs and former detainees at Guantanamo Bay, Cuba (Uighurs), sought appellate review of the district court’s denial of their habeas corpus petition challenging their detention. On May 5, 2006, the Friday before the oral argument scheduled on May 8, 2006, the appellees filed an emergency motion to dismiss the appeal as moot, arguing the Uighurs’ appeal was moot because earlier that day the appellees had released the Uighurs to Albania. The Uighurs opposed the motion, claiming their appeal was not mooted by the appellees’ voluntary cessation of their detention; moreover, their claim for injunctive relief was not moot. In addition, they argued that their release to Albania neither defeated our jurisdiction under Fed. R.App. P. 23(b) nor complied with part (a) of the same rule, which provides that a habeas petitioner cannot be transferred without court authorization. For the following reasons, we grant the appellees’ motion to dismiss. II. A. Mootness 1. Voluntary cessation The rationale supporting the defendant’s voluntary cessation as an exception to mootness is that, while the defendant’s unilateral cessation of the challenged" }, { "docid": "15010792", "title": "", "text": "§ 2255 motion was untimely and was properly dismissed. IV. For the foregoing reasons, we decline to award Segers a certificate of appealability, and we dismiss his appeal. CERTIFICATE OF APPEALABILITY DENIED AND APPEAL DISMISSED . The period of limitation is set forth in the unnumbered sixth paragraph of § 2255 and, in pertinent part, provides as follows: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; [or] (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255 ¶ 6. . The mandate in a court of appeals is issued \"7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later.” Fed. R.App. P. 41(b). The filing of a petition for rehearing in a court of appeals automatically stays the mandate until the petition for rehearing is decided. See Fed. R.App. P. 41(d)(1). As such, when a prisoner files a petition for rehearing in a court of appeals, its mandate does not issue, and its decision does not become final, until the petition for rehearing is denied. Importantly, as explained infra, the filing in the Supreme Court of a petition for rehearing of the denial of a petition for certio-rari has no effect on the finality of the judgment of conviction. . In addition to the decisions of the Tenth, Fifth, and Seventh Circuits, the Eleventh Circuit, in a brief per curiam opinion, also recently concluded that a prisoner’s judgment of conviction becomes final when the Supreme Court denies his petition for a writ of certiorari. See Washington v. United States, 243 F.3d 1299, 1300 (11th Cir.2001). . Segers contends that his case is distinct" }, { "docid": "9777401", "title": "", "text": "ORDER PER CURIAM Upon consideration of the motion for appointment of counsel; the motion for summary reversal; and the motion for summary affirmance, the opposition thereto, and the reply, it is ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. See D.C. Circuit Handbook of Practice and Internal Procedures 45 (1997). It is FURTHER ORDERED that the motion for summary reversal be denied and the motion for summary affirmance be granted. The merits of the parties’ positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). The Privacy Act requires that an action be brought within two years from the date the action arose, or within two years after the discovery of a willful misrepresentation by the agency that is material to its liability. See 5 U.S.C. § 552a(g)(5). A cause of action under the Privacy Act arises when the plaintiff knew or should have known of the alleged violation. See Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987). Failure to file within the statute of limitations is jurisdictional. Thus an untimely complaint deprives the district court of subject matter jurisdiction. See Diliberti v. United States, 817 F.2d 1259, 1262-64 (7th Cir.1987); see also Bowyer v. United States Dep’t of Air Force, 875 F.2d 632, 635 (7th Cir.1989). Appellant filed his complaint well after the two-year statute of limitations had run. His complaint should thus have been dismissed for lack of subject matter jurisdiction. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. The Clerk also is directed to publish this order." }, { "docid": "4186904", "title": "", "text": "JUDGMENT PER CURIAM. This cause came to be heard on appeal from an opinion and judgment of the United States District Court for the District of Columbia, Lozada Colon v. U.S. Dep’t of State, 2 F.Supp.2d 43 (D.D.C.1998), and was briefed by counsel. The issues have been accorded full consideration by the Court, and it is ORDERED and ADJUDGED that the judgment of the District Court, denying plaintiffs request for mandamus relief, be affirmed. We agree with the District Court that mandamus relief is inappropriate here, because 8 U.S.C. § 1501 clearly affords the Secretary discretion to determine whether a Certificate of Loss of Nationality should be issued. See 13th Regional Corp. v. U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C.Cir.1980) (“[Mjandamus will issue ‘only where the duty to be performed is ministerial and the obligation to act peremptory, and plainly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and indisputable.’”) (quoting United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 75 L.Ed. 1148 (1931)); accord Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (mandamus is only appropriate if “the defendant owes [the plaintiff] a clear nondis-cretionary duty”). We also find no merit in plaintiffs equal protection claims, raised for the first time on appeal. In affirming, we find it unnecessary to decide whether the plaintiff, Lozada Colon, failed to show that there was no other remedy, save mandamus, available to persons denied a Certificate of Loss of Nationality. Accordingly, we do not address any issues concerning the availability of judicial review for persons denied a Certificate of Loss of Nationality, nor do we affirm any of the District Court’s views on this matter. Matters regarding the availability of review, outside of mandamus, can be decided another day in a case properly raising these issues. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b);" }, { "docid": "4186905", "title": "", "text": "S.Ct. 502, 75 L.Ed. 1148 (1931)); accord Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (mandamus is only appropriate if “the defendant owes [the plaintiff] a clear nondis-cretionary duty”). We also find no merit in plaintiffs equal protection claims, raised for the first time on appeal. In affirming, we find it unnecessary to decide whether the plaintiff, Lozada Colon, failed to show that there was no other remedy, save mandamus, available to persons denied a Certificate of Loss of Nationality. Accordingly, we do not address any issues concerning the availability of judicial review for persons denied a Certificate of Loss of Nationality, nor do we affirm any of the District Court’s views on this matter. Matters regarding the availability of review, outside of mandamus, can be decided another day in a case properly raising these issues. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41." }, { "docid": "22435545", "title": "", "text": "ORDER AND OPINION ORDER Appellees’ request to publish the unpublished memorandum disposition is GRANTED. The memorandum disposition filed September 18, 2009, is modified by changing < known to the parties > to <set forth in Chaffer v. Prosper, 542 F.3d 662, 663-65 (9th Cir.2008),>. So modified, the memorandum disposition is redesignated as a per curiam opinion and is filed concurrently herewith. The panel has unanimously voted to deny the petition for rehearing. Judges O’Scannlain and Silverman have voted to deny the petition for rehearing en banc, and Judge Singleton so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b). The petition for rehearing and the petition for rehearing en banc are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed. OPINION PER CURIAM: Chaffer appeals from the district court’s dismissal of his federal habeas petition for failure to comply with the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AED-PA”). 28 U.S.C. § 2244(d)(1). We review de novo whether the statute of limitations should be tolled. Townsend v. Knowles, 562 F.3d 1200, 1204 (9th Cir.2009). The facts are set forth in Chaffer v. Prosper, 542 F.3d 662, 663-65 (9th Cir.2008), and need not be repeated here except as necessary. I Chaffer argues that he is entitled to statutory tolling for the 115-day gap between the denial of his first habeas petition in the Lassen County Superior Court and the filing of his second habeas petition in the California Court of Appeal, as well as for the 101-day gap between the denial of his second habeas petition and the filing of his third habeas petition in the California Supreme Court. Id. § 2244(d)(2). Under California’s indeterminate timeliness rule, “[a]s long as the prisoner filed a petition for appellate review within a ‘reasonable time,’ he c[an] count as ‘pending’ (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the" }, { "docid": "1428124", "title": "", "text": "ORDER The opinion filed on October 12, 2012, and appearing at 696 F.3d 943, is amended as follows: On page 12258 of the slip opinion, replace the final two sentences of the third paragraph with the following language: Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564-65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565. An amended opinion is filed concurrently with this order. With this amendment, Judges Fisher and Christen vote to deny Appellant’s petition for panel rehearing and rehearing en banc, filed on October 26, 2012, and Judge Nelson so recommends. The full court has been advised of the petition for rehearing and rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for en bane or panel rehearing shall be permitted. OPINION CHRISTEN, Circuit Judge: Portfolio Recovery Associates, LLC (PRA) appeals the September 14, 2011 district court order granting Jesse Meyer’s motion for a preliminary injunction and provisional class certification. Meyer’s complaint alleged that PRA’s debt collection efforts violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. The district court’s preliminary injunction restrained PRA from using its Avaya Proactive Contact Dialer to place calls to cellular telephone numbers with California area codes that PRA obtained via skip-tracing. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1). See also Paige v. State of Cal., 102 F.3d 1035, 1039 (9th Cir.1996). Having reviewed the record, we affirm. We resolve several issues on appeal: (1) whether the district court had jurisdiction and authority to issue its September 14, 2011 order; (2) whether the district court abused its discretion by certifying a provisional class for purposes of the preliminary injunction; and (3) whether the district court abused its discretion in granting the preliminary" } ]

[ { "docid": "11111250", "title": "", "text": "Because that provision exempts “transfers” made prior to March 4, 1931, we are called upon to decide whether the “transfer” here was made upon execution of the trust instrument in 1919 or in 1942 upon decedent’s release of her general testamentary power of appointment over the corpus. Petitioner concedes decedent irrevocably surrendered legal title to the corpus when she executed the trust instrument. Nevertheless, he contends the “transfer” exempted by Section 2036 must be “completed” prior to March 4, 1931, an event which, in his view, did not occur until surrender of the testamentary power of appointment in 1942. Petitioner further contends that, prior to 1942, the power of appointment could have been exercised in favor of her estate or her creditors and left the entire corpus subject to the claims of creditors during decedent’s lifetime. This, petitioner asserts, is sufficient to establish the “incompleteness” of the “transfer” prior to 1942. Respondent contends, on the other hand, the use of the word “transfer” in Section 2036 refers merely to the execution of the trust instrument and transfer of legal title, regardless of how “incomplete” it may be or what powers over corpus may have been reserved. The Tax Court followed its prior decisions on this issue and held “the transfer to which the exemption provision refers is the transfer of legal title to the trust upon creation of the trust. * * * ” We affirm. The present Section 2036 is the result of a series of Congressional enactments and judicial interpretations thereof which were followed almost immediately by further legislative revisions. Section 402(c) of the Revenue Act of 1918, 40 Stat. 1097, and Section 302(c) of the Act of 1926, 44 Stat. 70, provided that the value of a decedent’s gross estate should be deter mined by including the value at the time of death of all property to the extent of any interest therein of which the decedent had made a transfer “in contemplation of or intended to take effect in possession or enjoyment at or after his death.” Although it held a trust which the grantor could" } ]

[ { "docid": "11582052", "title": "", "text": "which cash and securities had an aggregate fair market value more than that of the stock which Dora had given to Charles. Under the trust, Dora had a life estate and power of appointment in the trust assets. Even though Dora had not previously owned the trust assets, we held that Dora was to be treated as having transferred these assets and as having retained a life interest therein. This caused the value of the trust assets (more precisely, that proportion of the trust assets as to which Dora had furnished the consideration) to be includable in her gross estate under section 2036(a). In Marshall, Dora’s estate argued, and we responded (51 T.C. at 701), as follows: section 2036 does not apply because Charles, not Dora, transferred his property, not hers, to the trusts. But tax consequences, like many other legal and economic consequences of a transaction, attach to the real party in interest. Estate of Grace D. Sinclaire, supra. Nothing in section 2036 requires an empty ritual whereby the debtor, in this case Charles, would first physically transfer title to the property to the creditor, Dora, so that the latter could then convey that property to the trusts. [Emphasis in original.] Dora’s estate sought to distinguish a line of cases (51 T.C. at 702)— on the ground that in each of them the decedent once owned or was entitled to receive the precise property which became the trust corpus. But the principle is not so limited. It applies with equal force where the arrangement substitutes one property for another of equal value. In Glaser v. United States, 306 F.2d 57 (C.A. 7, 1962), decedent and his wife conveyed a parcel of land to their daughter and her husband. As consideration for the conveyance, the daughter and her husband conveyed land of equal value, referred to as parcel VII, to decedent and his wife for their joint lives with remainder over to one of decedent’s sons. Holding parcel VII includable in decedent’s gross estate, the court said (p. 61): Looking through form to substance * * * decedent and his" }, { "docid": "10379406", "title": "", "text": "a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property. Section 2036(a)(1) applies if the decedent retained either the right to income from the property or its possession or enjoyment. Thus, even if a decedent does not expressly reserve a right to the income, the transferred property may be included in the decedent’s gross estate under section 2036(a)(1) if the decedent retained possession or enjoyment of the property. McNichol’s Estate v. Commissioner, 265 F.2d 667, 670-671 (3d Cir. 1959), affg. 29 T.C. 1179 (1958). For two reasons, we hold that Mr. Paxton’s transfers to the PFO and IDT trusts are includable in his gross estate under section 2036(a): (1) He made the transfers subject to an understanding, express or implied, that he would receive the trust income or corpus or both when requested, and (2) he retained an interest in the trust income and corpus his creditors could reach. A. Express or Implied Understanding Respondent contends that, pursuant to an understanding, express or implied, decedent retained for life the possession or enjoyment of, or the right to the income from, the property transferred to the trusts and that, therefore, the trust property is includable in his estate under section 2036(a)(1). Petitioners contend that decedent made a bona fide irrevocable transfer of his property to the trusts and that he retained no rights, interest, or control over the transferred property. Petitioners have the burden of proof. Estate of Whitt v. Commissioner, 751 F.2d 1548, 1556 (11th Cir. 1985), affg. a Memorandum Opinion of this Court. Had Mr. Paxton retained no rights in the entrusted property, as petitioners now contend, then the transfers would have been completed gifts and subject to gift tax under section 2501(a). Yet the record reveals that no gift tax return was filed when the property was transferred to the trusts. On January 23, 1975, not long before his death, Mr. Paxton filed with the Internal Revenue Service a letter protesting a proposed" }, { "docid": "10379416", "title": "", "text": "IDT trusts is includable in his gross estate under section 2036(a)(1). B. Retention of Interest Creditors Could Reach As settlor-beneficiary, decedent retained the economic benefit and enjoyment of the entire trust income and corpus because he could borrow money or otherwise incur indebtedness and relegate his creditors to the trust for payment. Retention of the right to use the trust as a form of security for his indebtedness in this manner left Mr. Paxton with a significant interest in the property. See United States v. Estate of Grace, 395 U.S. 316, 320 (1969). In our opinion, that is sufficient to require his transfers to the trusts to be included in his gross estate under section 2036(a)(1). The widely accepted legal principle controlling the rights of the creditors of a settlor-beneficiary of a trust in which the trustees are given discretion, not controlled by an ascertainable legal standard, to make distributions to the settlor, is stated in 1 Restatement, Trusts 2d, sec. 156(2) (1959), as follows: Where a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit.[ ] To permit the owner in creating a trust to retain for his own benefit an interest in the entrusted property which cannot be reached by creditors is against public policy. Nelson v. California Trust Co., 33 Cal. 2d 501, 202 P.2d 1021 (1949); In re Mogridge’s Estate, 342 Pa. 308, 20 A.2d 307, 309 (1941). This principle has been applied in both estate and gift tax cases. Where the decedent at any time during his life could have obtained the economic benefit of the trust income or corpus by borrowing and then forcing creditors to look to his interest in the trust income for a source of repayment, this interest has been held sufficient to require the inclusion of the transferred property in decedent’s gross estate under section 2036(a)(1). Estate of Uhl v. Commissioner, 25 T.C. 22 (1955), revd. and remanded" }, { "docid": "20063502", "title": "", "text": "the trust income was payable to decedent’s two sons for life, and each son was given a testamentary general power of appointment over one-half of the principal of the trust. Under the terms of the deed of trust, decedent reserved the right at any time to change the limitations contained therein with respect to the distributions of principal and income of the trust fund, provided no such appointment of principal should be made in favor of decedent or his estate. The trust was irrevocable in all other respects. In 1944 decedent released the power to make any change with respect to distribution of principal and income of the trust. Bejecting the respondent’s argument that the “transfer” within the meaning of section 811(c) (1) (B) of the 1939 Code, took place in 1944, when decedent released his power to amend the trust, and relying on the Cuddihy case as being controlling, we held that the decedent made a transfer in trust in 1930 and not in 1944, and that section 811(c) (1) (B) was thus inapplicable. In Cuddihy we distinguished Smith v. United States, supra, factually, pointing out that the trust created by the decedent in the Smith case was revocable in favor of the settlor by her joint action with her husband alone, whereas the transfer in Cuddihy was completely irrevocable. This case is also factually distinguishable from the Smith case because, as previously noted, under State law the trust was irrevocable and the settlor could not revoke the trust in her favor without the consent of all beneficiaries. But in both Cuddihy and Ridgway we also disagreed with the interpretation of section 811(c)(1)(B) of the 1939 Code, made by the majority of the Court of Claims in the Smith case. While the statute involved here is section 2036 of the 1954 Code, the wording thereof is precisely the same as that of section 811(c)(1)(B) of the 1939 Code, as amended, and we conclude, after reexamining the legislative and case law history which developed as a result of the Supreme Court decision in May v. Heiner, 281 U.S. 238, and" }, { "docid": "20063499", "title": "", "text": "“transfer” referred to in section 2036(b) was the original transfer of the property in trust in 1919 and therefore section 2036(a) is not applicable because the transfer was made before March 4, 1931. Respondent argues that section 2036(b) applies only to irrevocable transfers made prior to March 4, 1931; that decedent’s transfer in trust in 1919 was not truly irrevocable because of the retention of a general testamentary power of appointment; that the transfer did not become irrevocable until decedent released the power of appointment in 1942; and that the release of the power was a “transfer” within the meaning of section 2036(a) which was made after March 4,1931, so that section 2036(a) is applicable. Respondent cites Smith v. United States, 139 F. Supp. 305 (Ct. Cl., 1956), in support thereof. This same argument, under similar factual circumstances, has been presented to this Court by the Commissioner twice since the Court of Claims decision in the Smith case. In Estate of Robert J. Cuddihy, 32 T.C. 1171, decedent and his wife set up reciprocal trusts in 1926, granting to each other one-half the income of their respective trusts for life, the other one-half to be paid to decedent’s issue, with remainder over to decedent’s issue. The trusts were to continue until the death of two designated grandchildren, but were terminable in favor of decedent’s issue by the trustees with the consent of a majority in interest of the income beneficiaries. Decedent and his wife resigned as trustees in 1941, decedent’s wife died in 1944, and in 1946 decedent released his right to consent to the termination of the trust created by his wife. On February 7, 1949, decedent waived any rights he might have in the corpus of either trust, and on April 8, 1949, he released his right to receive income from the trust established by his wife in exchange for a cash consideration paid to him by his children. Realigning these trusts under the doctrine of Lehman v. Commissioner, 109 F. 2d 99 (C.A. 2, 1940), affirming 39 B.T.A. 17, certiorari denied 310 U.S. 637, decedent was regarded" }, { "docid": "20063509", "title": "", "text": "to income for life, section 2036(a) would be applicable except for section 2036(b). Again, if section 2036(b) is to have any meaning it would Have to refer to the transfer in 1919. But if respondent’s argument is correct we would have to conclude that where the 1919 trust reserved both the life income and the right to change beneficiaries, the word “transfer” used in section 2036(b) refers to a different transaction so that the release of one of these retained benefits, the right to change beneficiaries, resuscitates, so to speak, the retention of the life income so that it will be considered to have been retained after March 4, 1931, when the right to change beneficiaries was released. We cannot believe such a result was intended by Congress. The transfer referred to in section 2036(b) was the transfer in 1919 when these rights were retained. Hence, section 2036(a) does not apply to include the trust estate in decedent’s estate for estate tax purposes. Reviewed by the Court. Decision will be entered for the 'petitioner. The original House version of section 1000(e) (see H. Rept. No. 3687, 78th Cong., 1st Sess., sec. 502) referred specifically to section 166. The only cases Involving section 1000(e) which have heen called to our attention are Supplee v. Smith, 242 P. 2d 855 (C.A. 3, 1957), and Peters v. Alsup, 95 P. Supp. 684 (D. Hawaii, 1951), which are of little help because in each of those cases the Commissioner appears to have conceded the applicability of section 1000(e) to the release of reserved powers somewhat similar to the power involved here. SEC. 2036. TRANSFERS WITH RETAINED LIFE ESTATE. (a) General Rule. — The value of the gross estate shall include the value of all property (except real property situated outside of the united States) to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or" }, { "docid": "2955853", "title": "", "text": "would exercise his power to revoke and leave the children and her out in the cold. Counsel for plaintiffs concedes that any alleged transfer of the remainder to the children was “incidental to the main purposes of providing support for Mrs. Pope.” The letters of counsel, the testimony of the children, and the express language of the trust instruments indicate that Clara bargained for and received a guaranteed life estate, a medical allowance, and a shared power to revoke or amend the trust during her lifetime. The language of the separation agreement does not support a finding to the contrary. In light of these facts, the inescapable conclusion is that the remainder was transferred gratuitously to the children in 1930. Therefore, the proportionate amount of the remainder or corpus in question is includible in decedent’s estate under sections 2036(a) and 2038. Plaintiffs contention that section 2036 (b) exempts the transfer is only relevant if this court were to find that decedent did not die possessed of a power to revoke or amend the trust. Otherwise, section 2038, dealing with revocable transfers, would still apply and there would be no point in reaching the section 2036 (b) issue. In any event, it is now well established that section 2036(b) applies only to irrevocable trusts created prior to March 4, 1931. Commissioner of Internal Revenue v. Talbott’s Estate, 403 F.2d 851 (4th Cir., Sept. 20, 1968); Studebaker v. United States, 195 F.Supp. 841 (N.D.Ind.1961), modified, 211 F.Supp. 263 (1962); Smith v. United States, 139 F.Supp. 305, 134 Ct.Cl. 136 (1956). While there had been a split of authority regarding the application of section 2036(b) prior to Talbott, supra, no previous case held to the contrary on facts identical or similar to the instant case. Plaintiffs cite Commissioner of Internal Revenue v. Ridgway’s Estate, 291 F.2d 257 (3d Cir. 1961), and Commissioner of Internal Revenue v. Canfield’s Estate, 306 F.2d 1 (2d Cir. 1962), in support of their contention that decedent brought himself within the narrow confines of section 2036(b). However, both of these cases dealt with situations where the settlor had placed" }, { "docid": "2955854", "title": "", "text": "section 2038, dealing with revocable transfers, would still apply and there would be no point in reaching the section 2036 (b) issue. In any event, it is now well established that section 2036(b) applies only to irrevocable trusts created prior to March 4, 1931. Commissioner of Internal Revenue v. Talbott’s Estate, 403 F.2d 851 (4th Cir., Sept. 20, 1968); Studebaker v. United States, 195 F.Supp. 841 (N.D.Ind.1961), modified, 211 F.Supp. 263 (1962); Smith v. United States, 139 F.Supp. 305, 134 Ct.Cl. 136 (1956). While there had been a split of authority regarding the application of section 2036(b) prior to Talbott, supra, no previous case held to the contrary on facts identical or similar to the instant case. Plaintiffs cite Commissioner of Internal Revenue v. Ridgway’s Estate, 291 F.2d 257 (3d Cir. 1961), and Commissioner of Internal Revenue v. Canfield’s Estate, 306 F.2d 1 (2d Cir. 1962), in support of their contention that decedent brought himself within the narrow confines of section 2036(b). However, both of these cases dealt with situations where the settlor had placed legal title to the corpus beyond recall by himself acting alone. In neither case had the settlor expressly retained a power to revoke such as decedent did in the instant case. The court in Canfield, supra, cited Ridgway’s Estate, supra, as authority yet limited its holding to the specific facts present. It went on to say: “What result we would reach in a case involving a trust revocable by the settlor acting alone * * * is a question we need not and do not decide.” 306 F.2d at 8. Therefore, even without the recent holding in Talbott, supra, this court is not compelled to find section 2036(b) applicable to the facts of the instant case. The few cases falling within the narrow reach of section 2036(b) concern retained life estates or limited powers of appointment and not retained powers of revocation such as we have here. Since the main purpose of the estate tax is to prevent various degrees of estate depletion it is entirely consistent to distinguish between a retained life estate or" }, { "docid": "20063497", "title": "", "text": "power reserved by the donor, the release of which was held to be a transfer by gift, was “the right to modify any or all of the trusts” provided that this right “shall in no way be deemed or construed to include any right or privilege” in the donor “to withdraw principal or income from any trust.” Such reserved right would have permitted the donor, either inter vivos or at death, to do anything decedent here could have done under the power reserved in the trust here involved. Furthermore, if the purpose of Congress in enacting section 1000(e) was to permit the release of San ford-type powers tax free within a certain period, it would seem that the qualification to this right (being that subsequent to January 1, 1939, the grantor had no power to revest title in himself) was intended to mean the same as the limitation placed on the right reserved in the Sanford case (being the right to withdraw principal or income from the trust); and it is reasonable to assume that the qualifying language used in section 1000(e) was intended to mean a right exercisable by the grantor during his life for his own benefit. Since decedent held no power on or after January 1, 1939, to revest title to the trust corpus in herself, either alone or in conjunction with a person having no substantial adverse interest in the disposition of the corpus, we hold that section 1000(e) applies, and the relinquishment by decedent of the testamentary power of appointment in 1942 is not subject to gift tax. The second issue is whether the corpus of the trust is includible in decedent’s gross estate. Petitioner concedes that it would be includible under section 2036(a), I.E.C. 1954 except for the relief provision contained in section 2036(b). Section 2036(a) provides for the inclusion in the decedent’s gross estate of the value of property of which decedent has made a transfer while retaining the income for life. Section 2036(b) provides that section 2036(a) shall not apply to a transfer made before March 4, 1931. Petitioner contends that the" }, { "docid": "4366502", "title": "", "text": "and as Trustee for the benefit of the children of the parties hereto.” This practical interpretation of the trust instrument shows that decedent understood the trust indenture to empower him to use trust funds for the support of his children. A settlor’s acts are of great significance in construing a trust instrument. Helfrich's Estate v. Commissioner, 143 F. 2d 43, 46 (C.A. 7, 1944), affirming 1 T.C. 590 (1943). Petitioner recognizes that if the income of a trust created by a decedent is used to discharge a legal obligation of the decedent during his life he will be held to have retained enjoyment of the income. Nevertheless, petitioner seeks to avoid inclusion of the trust on the ground that it is stipulated no payments were actually made from the trust to satisfy the decedent’s obligation to support his wife and children with the exception of a $500 payment on June 17, 1960, to send William Gardner Pardee to the Lost Trail Camp. But section 2036(a) (1) refers not only to the possession or enjoyment of property but also to “right to the income” from property. The section does not require that the transferor pull the “string” or even intend to pull the string on the transferred property; it only requires that the string exist. See McNichol's Estate v. Commissioner, 265 F. 2d 667, 671 (C.A. 3, 1959), affirming 29 T.C. 1179 (1958), certiorari denied 361 U.S. 829 (1959); cf. Estate of Robert Manning McKeon, 25 T.C. 697, 704 (1956). Since the decedent as trustee had the right to use the income to discharge his legal obligation to support his minor children, his retained interest falls within section 2036(a) (1). There remains the difficult question of determining the amount to be included in decedent’s gross estate by reason of the operation of section 2036(a) (1). We are aided to some extent by a concession by respondent that the full amount of the trust is not includable under this section and a suggestion that not less than the amount of corpus necessary to produce the monthly income required to satisfy decedent’s obligation" }, { "docid": "11582051", "title": "", "text": "relations are peculiarly irrelevant in the application of tax measures now so largely directed toward intangible wealth. [Footnote references omitted.] More recently, in United States v. Estate of Grace, 395 U.S. 316, 320 (1969), the Supreme Court stated that the general purpose of section 811(c)(1)(B), I.R.C. 1939 (the more immediate predecessor of sec. 2036), \"was to include in a decedent’s gross estate transfers that are essentially testamentary — i. e., transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime. See Commissioner v. Estate of Church, 335 U.S. 632, 643-644 (1949).” In applying section 2036, the substance of the transfer in issue should guide us, not its form. See Glaser v. United States, 306 F.2d 57, 61 (7th Cir. 1962); Estate of Marshall v. Commissioner, 51 T.C. 696, 700-701 (1969). In Estate of Marshall v. Commissioner, supra, Dora Marshall gave to Charles Marshall, her husband, shares of stock in a corporation. In exchange, Charles created a trust and contributed to it cash and securities in other corporations, which cash and securities had an aggregate fair market value more than that of the stock which Dora had given to Charles. Under the trust, Dora had a life estate and power of appointment in the trust assets. Even though Dora had not previously owned the trust assets, we held that Dora was to be treated as having transferred these assets and as having retained a life interest therein. This caused the value of the trust assets (more precisely, that proportion of the trust assets as to which Dora had furnished the consideration) to be includable in her gross estate under section 2036(a). In Marshall, Dora’s estate argued, and we responded (51 T.C. at 701), as follows: section 2036 does not apply because Charles, not Dora, transferred his property, not hers, to the trusts. But tax consequences, like many other legal and economic consequences of a transaction, attach to the real party in interest. Estate of Grace D. Sinclaire, supra. Nothing in section 2036 requires an empty ritual whereby the debtor, in this case Charles," }, { "docid": "15449131", "title": "", "text": "the life estate could ever \"undo\" the estate tax consequences of the earlier donative transfer to the trust with a life estate retained, which was con-cededly within the predecessor to section 2036(a) and not within the exception thereto. Id. at 918 (\"As I read the statute the tax liability arises at the time of the inter vivos transfer under which there was a retention of the right to income for life. The disposition thereafter of that retained right does not eliminate the tax liability.”). The correctness of this view is of perhaps only tenuous relevance here, as here the deed from Melton to the Wheelers is within the section 2036(a) exception. In any event, we note that neither the Allen majority nor, so far as we are aware, any other authority, has embraced Judge Breiten- stein’s view as thus broadly stated. See, for example, 5 Bittker & Lokken, supra, at 126-27: \"... if the decedent transferred property subject to a retained life estate but later (more than three years before death) relinquished the life estate, § 2036(a)(1) does not apply, even though the decedent ‘retained’ the right to the income 'for life.’104 An unqualified transfer of property during life-even though effected in two or more steps-has long been recognized as being exclusively within the jurisdiction of the gift tax unless the final step was taken in contemplation of death or within three years of death.105 104 Cuddihy’s Est. v. C.I.R., 32 TC 1171, 1177, 1959 WL 1086 (1959) (retained right to trust income relinquished during decedent's life; alternative ground). See Ware's Est. v. C.I.R., 480 F.2d 444 (7th Cir.1973) (decedent-grantor was trustee with power to accumulate or distribute trust income, but resigned as trustee many years before dying; no inclusion under § 2036). 105 If a § 2036(a) right was relinquished within three years of death, the property is included in the gross estate, apparently as though the right has not been relinquished. IRC § 2035(d)(2), discussed supra ¶ 126.4.2. For the result under prior law where an otherwise taxable right was relinquished in contemplation of death, see U.S. v." }, { "docid": "20063508", "title": "", "text": "without section 2036(b). And respondent has pointed to no other section of the Code which would require inclusion of the trust in decedent’s estate tax for estate tax purposes. The following analysis also indicates that the “transfer” referred to in section 2036(b) could only apply to the transfer whereby decedent established this trust in 1919, and not to the release of her power of appointment in 1942. Section 2036 (b) says that section 2036 shall not apply to a transfer made before March 4,1931. This must mean a transfer described in section 2036(a), otherwise the provision would be misplaced. A transfer described in section 2036(a) is one wherein the transferor reserves a life estate or the right to designate beneficiaries. Had the 1919 trust agreement reserved for decedent only the right to designate beneficiaries, section 2036(a) might be applicable except for section 2036(b). But if section 2036(b) were to have any meaning under those circumstances it would have to refer to the transfer in 1919. Likewise, if the trust agreement had reserved only the right to income for life, section 2036(a) would be applicable except for section 2036(b). Again, if section 2036(b) is to have any meaning it would Have to refer to the transfer in 1919. But if respondent’s argument is correct we would have to conclude that where the 1919 trust reserved both the life income and the right to change beneficiaries, the word “transfer” used in section 2036(b) refers to a different transaction so that the release of one of these retained benefits, the right to change beneficiaries, resuscitates, so to speak, the retention of the life income so that it will be considered to have been retained after March 4, 1931, when the right to change beneficiaries was released. We cannot believe such a result was intended by Congress. The transfer referred to in section 2036(b) was the transfer in 1919 when these rights were retained. Hence, section 2036(a) does not apply to include the trust estate in decedent’s estate for estate tax purposes. Reviewed by the Court. Decision will be entered for the 'petitioner. The" }, { "docid": "20063507", "title": "", "text": "his life the right to possess, enjoy, or receive the income from the property, or the right to designate beneficiaries. Section 2036(a) would clearly be applicable to the transfer whereby this decedent originally created the trust in 1919, except for section 2036(b). It is equally clear that section 2036(b) would prevent application of section 2036(a) to this transfer made in 1919. But we cannot see how the transaction by which decedent released her power of appointment in 1942 could be considered a transfer described in section 2036(a) without adding words to that section as written. By releasing her power of appointment decedent did not retain her right to designate beneficiaries — she gave up a right she already had. And by releasing her power of appointment in 1942 decedent did not retain the right to income from the property for her life — she already had that. Thus in our opinion it is very doubtful that decedent’s release of her testamentary power of appointment in 1942 would qualify as a transfer under section 2036(a) even without section 2036(b). And respondent has pointed to no other section of the Code which would require inclusion of the trust in decedent’s estate tax for estate tax purposes. The following analysis also indicates that the “transfer” referred to in section 2036(b) could only apply to the transfer whereby decedent established this trust in 1919, and not to the release of her power of appointment in 1942. Section 2036 (b) says that section 2036 shall not apply to a transfer made before March 4,1931. This must mean a transfer described in section 2036(a), otherwise the provision would be misplaced. A transfer described in section 2036(a) is one wherein the transferor reserves a life estate or the right to designate beneficiaries. Had the 1919 trust agreement reserved for decedent only the right to designate beneficiaries, section 2036(a) might be applicable except for section 2036(b). But if section 2036(b) were to have any meaning under those circumstances it would have to refer to the transfer in 1919. Likewise, if the trust agreement had reserved only the right" }, { "docid": "20063486", "title": "", "text": "OPINION. Deennen, Judge: Respondent determined a deficiency in gift tax liability of Ellie G. Canfield, deceased, for the year 1942 in the amount of $35,293.58, and a net estate tax deficiency against her estate in the amount of $117,153.13. The issues for decision are: (1) \"Whether the release of a reserved testamentary general power of appointment by decedent in 1942 constituted a taxable gift of the remainder value of the trust corpus at the time of such relinquishment, or was exempt from gift tax under section 1000(e), I.R.C. 1939; and (2) whether the corpus of the trust created by the decedent in 1919, wherein she reserved the income for life and a general testamentary power of appointment over the corpus, which power was released in 1942, is includible in her gross estate under section 2036(a), I.R.C. 1954, or exeludible under section 2036(b) as a transfer made prior to March 4, 1931. All of the facts were stipulated and are incorporated herein by reference. The facts may be summarized as follows. Ellie G. Canfield, deceased, herein referred to as decedent, was born on August 2, 1863, and died on January 24, 1955. At the time of her death and at all other times material to this case she was domiciled in and a resident of the State of New York. Decedent’s husband, Francis D. Canfield, died on October 8, 1917. Decedent never remarried. On March 24, 1919, decedent, as grantor, and the Central Union Trust Company of New York and decedent, as trustees, executed a trust agreement whereby decedent transferred to the trustees certain securities described in a schedule attached to the trust instrument. The first clause of the trust instrument directed the trustee to invest and reinvest all corpus of the trust and to pay the income, after deducting proper charges incident to the execution of the trust, to decedent during her life. The second clause of the trust instrument gave to decedent a testamentary power of appointment of the corpus of the trust as follows: Upon tlie death of the party of the first part, to pay oyer the" }, { "docid": "10379405", "title": "", "text": "of all property transferred by trust or otherwise with respect to which the decedent has retained for his life or a period which did not in fact end before his death (1) the possession or enjoyment of, or right to income from the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom. That section reflects a “legislative policy of subjecting to tax all property which has been the subject of an incomplete inter vivos transfer.” United States v. O’Malley, 383 U.S. 627, 631 (1966). The legislative policy is to include in a decedent’s gross estate transfers which are in substance testamentary, i.e., “transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime.” United States v. Estate of Grace, 395 U.S. 316, 320 (1969). As stated in Commissioner v. Estate of Church, 335 U.S. 632, 645 (1949): an estate tax cannot be avoided by any trust transfer except by a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property. Section 2036(a)(1) applies if the decedent retained either the right to income from the property or its possession or enjoyment. Thus, even if a decedent does not expressly reserve a right to the income, the transferred property may be included in the decedent’s gross estate under section 2036(a)(1) if the decedent retained possession or enjoyment of the property. McNichol’s Estate v. Commissioner, 265 F.2d 667, 670-671 (3d Cir. 1959), affg. 29 T.C. 1179 (1958). For two reasons, we hold that Mr. Paxton’s transfers to the PFO and IDT trusts are includable in his gross estate under section 2036(a): (1) He made the transfers subject to an understanding, express or implied, that he would receive the trust income or corpus or both when requested, and (2) he retained an interest in the trust income and corpus his creditors could reach. A." }, { "docid": "20063503", "title": "", "text": "In Cuddihy we distinguished Smith v. United States, supra, factually, pointing out that the trust created by the decedent in the Smith case was revocable in favor of the settlor by her joint action with her husband alone, whereas the transfer in Cuddihy was completely irrevocable. This case is also factually distinguishable from the Smith case because, as previously noted, under State law the trust was irrevocable and the settlor could not revoke the trust in her favor without the consent of all beneficiaries. But in both Cuddihy and Ridgway we also disagreed with the interpretation of section 811(c)(1)(B) of the 1939 Code, made by the majority of the Court of Claims in the Smith case. While the statute involved here is section 2036 of the 1954 Code, the wording thereof is precisely the same as that of section 811(c)(1)(B) of the 1939 Code, as amended, and we conclude, after reexamining the legislative and case law history which developed as a result of the Supreme Court decision in May v. Heiner, 281 U.S. 238, and its overruling in Commissioner v. Estate of Church, 335 U.S. 632, and bringing it up to date through the enactment of the 1954 Code, that our interpretation of section 811(c)(1)(B) in the Cuddihy and Ridgway cases is correct and controlling with respect to our application of section 2036 of the 1954 Code here. We believe our conclusion is fortified by the fact that Congress, 5 years after the decision in the Church case, which occasioned the adoption of the exception provision, in reviewing and rearranging the estate tax provisions in the 1954 Code, used the same plain and unambiguous language in section 2036 that had been contained in section 811(c)(1)(B) of the 1939 Code, but separated this provision from those involving transfers in contemplation of death and those taking effect at or after death with which it had been coupled in section 811(c) of the 1939 Code. Section 2036 is entitled “Transfers With Retained Life Estate” and pertains only to transfers under which the transferor retained for life (1) the possession, enjoyment, or right to" }, { "docid": "15449132", "title": "", "text": "§ 2036(a)(1) does not apply, even though the decedent ‘retained’ the right to the income 'for life.’104 An unqualified transfer of property during life-even though effected in two or more steps-has long been recognized as being exclusively within the jurisdiction of the gift tax unless the final step was taken in contemplation of death or within three years of death.105 104 Cuddihy’s Est. v. C.I.R., 32 TC 1171, 1177, 1959 WL 1086 (1959) (retained right to trust income relinquished during decedent's life; alternative ground). See Ware's Est. v. C.I.R., 480 F.2d 444 (7th Cir.1973) (decedent-grantor was trustee with power to accumulate or distribute trust income, but resigned as trustee many years before dying; no inclusion under § 2036). 105 If a § 2036(a) right was relinquished within three years of death, the property is included in the gross estate, apparently as though the right has not been relinquished. IRC § 2035(d)(2), discussed supra ¶ 126.4.2. For the result under prior law where an otherwise taxable right was relinquished in contemplation of death, see U.S. v. Allen, 293 F.2d 916 (10th Cir.), cert, denied, 368 U.S. 944, 82 S.Ct. 378, 7 L.Ed.2d 340 (1961) (sale of life estáte for inadequate consideration); Rev. Rul. 56-324, 1956-2 CB 999.” The current structure of section 2035 seems to confirm the \"contemplation-of-death” approach implicit in Allen. Under section 2035(a), transfers within three years of death-the substitute for the former “contemplation-of-death” provision-are included in the gross estate. Under section 2035(b)(1), transfers for adequate and full consideration are exempted from section 2035(a). Under section 2035(d)(1), estates of decedents dying after December 31, 1981, are exempted from section 2035(a), but, by the terms of section 2035(d)(2), that exemption \"shall not apply to a transfer of an interest in property which is included in the value of the gross estate under sections 2036, 2037, 2038, or 2042 or would have been included under any of such sections if such interest had been retained by the decedent.” See generally 5 Bittker & Lokken, supra, at 126-34, 126-35. Thus, were the Allen facts present today- and the court again held the" }, { "docid": "20063498", "title": "", "text": "the qualifying language used in section 1000(e) was intended to mean a right exercisable by the grantor during his life for his own benefit. Since decedent held no power on or after January 1, 1939, to revest title to the trust corpus in herself, either alone or in conjunction with a person having no substantial adverse interest in the disposition of the corpus, we hold that section 1000(e) applies, and the relinquishment by decedent of the testamentary power of appointment in 1942 is not subject to gift tax. The second issue is whether the corpus of the trust is includible in decedent’s gross estate. Petitioner concedes that it would be includible under section 2036(a), I.E.C. 1954 except for the relief provision contained in section 2036(b). Section 2036(a) provides for the inclusion in the decedent’s gross estate of the value of property of which decedent has made a transfer while retaining the income for life. Section 2036(b) provides that section 2036(a) shall not apply to a transfer made before March 4, 1931. Petitioner contends that the “transfer” referred to in section 2036(b) was the original transfer of the property in trust in 1919 and therefore section 2036(a) is not applicable because the transfer was made before March 4, 1931. Respondent argues that section 2036(b) applies only to irrevocable transfers made prior to March 4, 1931; that decedent’s transfer in trust in 1919 was not truly irrevocable because of the retention of a general testamentary power of appointment; that the transfer did not become irrevocable until decedent released the power of appointment in 1942; and that the release of the power was a “transfer” within the meaning of section 2036(a) which was made after March 4,1931, so that section 2036(a) is applicable. Respondent cites Smith v. United States, 139 F. Supp. 305 (Ct. Cl., 1956), in support thereof. This same argument, under similar factual circumstances, has been presented to this Court by the Commissioner twice since the Court of Claims decision in the Smith case. In Estate of Robert J. Cuddihy, 32 T.C. 1171, decedent and his wife set up reciprocal trusts" }, { "docid": "483768", "title": "", "text": "the trust. Upon the death of Minnie C. Blagen, the trust corpus, including such accumulated income added to the corpus, was to be distributed to the grandchildren of Clarence G. Blagen. Minnie C. Blagen (decedent) never exercised or released her power over the income of the trust in any year from the inception of the trust until her death on July 13, 1960, except insofar as the annual lapse of the power, if any such lapse occurred, constituted a release of the power as a matter of law under Section 2041(b) (2) of the Internal Revenue Code. The Commissioner, in assessing the tax deficiency, included in the decedent’s gross estate the net income of the trust, less allowable exemptions, for the years 1955, 1956, 1957, 1958 and 1959. The inclusion of accumulated income which had been added to the trust in those years resulted in an increase in the decedent’s gross estate of $116,045.36. The taxpayer had not included this amount in the estate tax return which he had filed for the estate. The Commissioner determined that the decedent possessed a general power of appointment over the trust income and that the failure of the decedent to exercise this power constituted a lapse of the power in each year in which it was not exercised. The Commissioner contends that the lapse constitutes a release of the power under Section 2041(b) (2) in such a way that, if it were a transfer of property owned by the decedent, the property would have been includible in the decedent’s gross estate as a transfer with a retained life estate under Section 2036 (a) (1) The taxpayer agrees that the decedent possessed a general power of appointment, and that the “transfer” each year, had the property been owned by the decedent, would be a transfer with a retained life estate. The taxpayer contends, however, that the decedent was incompetent for some seven years prior to her death and her general power of appointment could not have been lawfully exercised or released by her or by anyone acting in her behalf and that therefore the" } ]

[ { "docid": "23292671", "title": "", "text": "24 (3d Cir.1989) (per curiam) (dicta) (nothing improper in such adjustment where defendant lied about his name, birth date, and citizenship to immigration agent and federal magistrate). B. Rejection of Acceptance of Responsibility Guidelines § 3E1.1 provides that: (a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels. (c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right. In determining whether a defendant qualifies for an acceptance of responsibility adjustment, consideration may be given to “voluntary termination or withdrawal from criminal conduct or associations.” Application Note 1(a). In addition, Application Note 4 states that acceptance of responsibility is “ordinarily” not warranted where a defendant’s sentence is being enhanced pursuant to Guidelines § 3C1.1, as Jordan’s is here. The district court rejected Jordan’s request for “remorse points” on the basis of Jordan’s undisputed participation in what appeared to be two separate incidents of drug dealing involving minors while he awaited sentencing. There was no factual dispute regarding these incidents. The district judge exercised his discretion properly in finding that a defendant who took advantage of his status as a convicted drug dealer free on bond to pursue drug trafficking in the company of minors has not accepted responsibility for the criminal behavior for which he was convicted. Jordan does little more than point to his guilty plea to a single count of his three-count indictment as evidence of his acceptance of responsibility. The Sentencing Commission went out of its way in subsection 3El.l(c) to suggest that a plea alone does not justify leniency; a district court may expect more than Jordan has provided in the way of visible acceptance of responsibility. Just as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sentencing for dealing in that drug is consistent with acceptance of responsibility for that crime. C. Upward Departure The sentencing" } ]

[ { "docid": "23366359", "title": "", "text": "two-to-one decision, the Sixth Circuit has held: acceptance of responsibility, as contemplated by the United States Sentencing Commission, is “acceptance of responsibility for his offense,” ... not for “illegal conduct” generally. Considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue. United States v. Morrison, 983 F.2d 730, 735 (6th Cir.1993) (citations and footnote omitted; emphasis in original case). All other circuits that have addressed this issue have held that the sentencing court may consider criminal conduct unrelated to the underlying offense in determining whether defendant qualifies for an adjustment for acceptance of responsibility. United States v. McDonald, 22 F.3d 139, 144 (7th Cir.1994) (reviewing cases in various circuits) (affirming denial of acceptance of responsibility where defendant used cocaine while awaiting sentence for’ counterfeiting); United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991) (upholding denial of acceptance of responsibility where defendant used marijuana after committing mail theft); United States v. Watkins, 911 F.2d 983, 984 (5th Cir.1990) (affirming denial of acceptance of responsibility adjustment where defendant used cocaine while on release pending sentencing for forgery); United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990) (holding “the district court acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility” for the underlying postal theft offense). We are persuaded by the decisions of the First, Fifth, Seventh, and Eleventh Circuits, and decline to find that Section 3E1.1 contains any restriction against considering unrelated criminal conduct in denying an acceptance of responsibility reduction. Rather, the guideline permits the district court to consider whether defendant has demonstrated “voluntary termination or withdrawal from criminal conduct or associations,” U.S.S.G. § 3E1.1, Application Note 1(b), and defendant’s conduct “may ... outweigh” the fact that defendant pleaded guilty to the underlying offense. While, as the First Circuit has noted, “[t]he fact that a defendant engages in later, undesirable, behavior does not necessarily prove that he is not sorry" }, { "docid": "23487607", "title": "", "text": "cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990), the defendant pleaded guilty to distribution and possession of cocaine. While out on bond, he continued to deal cocaine and this court affirmed the district court’s refusal to allow the two-level reduction for acceptance of responsibility. 902 F.2d at 506 (“Mann’s conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes”); see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (the defendant pleaded guilty to attempted possession with intent to distribute cocaine and dealt cocaine after the indictment); United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990) (charged with bank fraud, defendant engaged in additional fraudulent activity while awaiting sentencing; court held that continued criminal conduct was evidence of lack of sincere remorse). While this court has upheld the refusal to grant a reduction when the defendant engages in criminal activity that is the same or similar to the charges pending against him, no case in this circuit addresses the situation in which the intervening criminal activity is not the same or similar to the crime charged. Other circuits have spoken on this issue but are not in agreement. The First, Fifth, and Eleventh Circuits hold that a defendant is not entitled to a reduction if he or she has used a controlled substance while on release pending sentencing. The Sixth Circuit disagrees. In United States v. O’Neil, 936 F.2d 599 (1st Cir.1991), the defendant pleaded guilty to charges of breaking into a post office and stealing mail. While on bail awaiting sentencing, the defendant used marijuana and broke into a building. The district court refused to reduce his sentence under § 3E1.1, specifically pointing to his use of marijuana. On appeal, the defendant argued that the court could not require him to accept responsibility for uncharged conduct. Id. at 599. The First Circuit held that the district court properly considered defendant’s later conduct “for the light that conduct shed on the authenticity of appellant’s claimed remorse” for the charged offense. Id. at" }, { "docid": "23487614", "title": "", "text": "termination or withdrawal from criminal conduct or associations. As several courts have noted, the broad language of Note 1(b) indicates that the criminal conduct or associations referred to relate not only to the charged offense, but also to criminal conduct or associations generally. Such conduct reflects the defendant’s lack of remorse and is inconsistent with an acceptance of responsibility. It is reasonable for a district court to find that continuing criminal conduct bears on the truth of defendant’s statements on the charged offense. See United States v. Piper, 918 F.2d 839, 840 (9th Cir.1990). While a defendant’s continued criminal activity does not preclude him from receiving a reduction for acceptance of responsibility, it is properly considered by a sentencing judge as it bears on the charged offense. Although a guilty plea before trial is significant evidence of acceptance of responsibility, it may be outweighed by conduct of the defendant that is inconsistent with such acceptance. U.S.S.G. § 3E1.1, comment, (n. 3). A district court may conclude that continued criminal activity, such as use of a controlled substance, is not consistent with acceptance of responsibility. In this case, McDonald’s repeated failure to submit urine samples and the positive test results for marijuana and cocaine reflect that the district court did not err in concluding that McDonald has not accepted responsibility for his crime. Although the other considerations listed in the Guidelines may favor a reduction, such as pleading guilty within 60 days of arraignment, a district court also may consider a defendant’s use of drugs and failure to comply -with the terms of his release on bond in determining whether a defendant should receive the two-level reduction for acceptance of responsibility. B. Mitigating Role McDonald next argues that he was entitled to a four-level reduction in offense level because of his minimal role in the offense, rather than the two-level reduction allowed by the district court for his minor role in the offense. U.S.S.G. § 3B1.2. Any determination under § 3B1.2 is heavily dependent upon the facts of the case, United States v. Gunning, 984 F.2d 1476, 1484 (7th Cir.1993), and" }, { "docid": "23487606", "title": "", "text": "bond awaiting sentencing, the defendant used cocaine and engaged in drug trafficking. The district court found that he was not entitled to a two-level reduction for acceptance of responsibility. In affirming the district court’s sentence, this court held that “[j]ust as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sen tencing for dealing in that drug is consistent with acceptance of responsibility for that crime.” Id. at 974. Similarly, in United States v. Panadero, 7 F.3d 691 (7th Cir.1993), the defendant engaged in fraudulent transactions, and while released on bond engaged in bank fraud. The court held that the defendant did not qualify for the reduction because she continued to engage in criminal activity following her arrest. The court did not explicitly rely on the similarity of the crimes in upholding the district court’s refusal to reduce her sentence under § 3E1.1. In United States v. Franklin, 902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990), the defendant pleaded guilty to distribution and possession of cocaine. While out on bond, he continued to deal cocaine and this court affirmed the district court’s refusal to allow the two-level reduction for acceptance of responsibility. 902 F.2d at 506 (“Mann’s conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes”); see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (the defendant pleaded guilty to attempted possession with intent to distribute cocaine and dealt cocaine after the indictment); United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990) (charged with bank fraud, defendant engaged in additional fraudulent activity while awaiting sentencing; court held that continued criminal conduct was evidence of lack of sincere remorse). While this court has upheld the refusal to grant a reduction when the defendant engages in criminal activity that is the same or similar to the charges pending against him, no case in this circuit" }, { "docid": "22851307", "title": "", "text": "while out on bond), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (acceptance of responsibility reduction denied where defendant, charged with postal theft, “had not turned away from the lifestyle that had motivated his offense of conviction,” viz., cocaine use), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And courts will uphold denials of an acceptance of responsibility reduction where the pre-sentencing criminal conduct is both of the same type and otherwise related to the underlying offense. See, e.g., United States v. Jordan, 890 F.2d 968, 973-74 (7th Cir.1989) (acceptance of responsibility denied where defendant, charged with possession with intent to distribute cocaine, participated in two separate instances of drug dealing, and used cocaine, while awaiting sentencing). At least one case is directly on point. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the Fifth Circuit reviewed a case where the defendant, having pled guilty to passing forged treasury checks and to possessing treasury checks stolen from the mail, used cocaine while on release pending sentencing. The district court refused to grant the defendant an acceptance of responsibility reduction solely because of the drug use. See id. at 984. The Fifth Circuit, noting that “there is no direct basis for this interpretation [of the acceptance of responsibility criterion] in the Guidelines themselves or in case law,” yet upheld the district court’s ruling. Id. It concluded that the district court’s view was not clearly erroneous because Application Note 1(a) “is phrased in general terms and does not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction.” Id. at 985; see also United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991) (seeming to accept proposition that any criminal conduct shows lack of remorse and thus lack of acceptance of responsibility for crime charged). In contrast to Watkins (and O’Neil), we consider “voluntary termination or withdrawal from criminal conduct” to refer to that conduct which is related to" }, { "docid": "9559668", "title": "", "text": "985 F.2d 371, 374 (7th Cir.1993). Panadero bears the burden of demonstrating that the district court's finding was \"without foundation.\" United States v. White, 993 F.2d 147, 151 (7th Cir.1993). She has failed to do so. The district court rested its decision on two grounds. First, the court found that Panadero did not quali~r for the reduction because she had continued to engage in criminal activity following her arrest. We approved this basis for denying the reduction in United States v. Franklin, 902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). See also United States v. Jordan, 890 F.2d 968, 974 (7th Cir.1989). The district court clearly did not err here in finding that a defendant who had defrauded several banks while awaiting disposition of similar charges had not accepted responsibility for her criminal conduct. The court also denied the reduction because it found Panadero's acceptance of responsibility to be insincere. Although Pa-nadero contends that this finding was \"simply stated, in essence, without more\" (Pa-nadero Brief at 17), the district court's finding was in fact well-reasoned, supported by the evidence, and consistent with the law of this Circuit. The court found that although Panadero had pled guilty, she \"represent[ed] a paradigm case of someone who pleads guilty but does not accept personal responsibility for her own acts in the moral sense.\" (June 23, 1992 Tr. at 11.) The court believed that instead of expressing actual remorse, Panadero had accepted responsibility only in order to reduce her sentence. The court noted that Panadero had in the past committed similar crimes, pled guilty, received light sentences, and then resumed her criminal activity upon release. Denial of the reduction on this basis is consistent with our precedents that recognize the distinction between actual acceptance of responsibility and merely seeking to reduce one's sentence. See White, 993 F.2d at 151; Franklin, 902 F.2d at 505-06. The district court's refusal to grant the reduction was therefore appropriate. III. More than Minimal Planning Guidelines section 2F1.1(b)(2) requires the district court to increase the offense level by two" }, { "docid": "23487610", "title": "", "text": "guilty to theft of funds from a self-service stamp vending machine. The defendant provided the authorities with information regarding other postal thefts, but the court declined to reduce his sentence under § 3E1.1 because he had continued to use cocaine after his arrest. The Eleventh Circuit held that the district court “acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility.” Id. at 1216. The court noted that while a defendant’s continued use of narcotics “does not preclude an adjustment for acceptance of responsibility, it is one indicia that the sentencing judge may consider in assessing whether the adjustment is appropriate.” Id.; see United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (continued drug use is inconsistent with acceptance of responsibility), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989). On the other hand, the Sixth Circuit has held that consideration of a defendant’s post-indictment, pre-sentencing attempted theft charge and positive drug test was inappropriate when determining whether a defendant accepted responsibility for firearms violations. United States v. Morrison, 983 F.2d 730 (6th Cir.1993); see United States v. Moored, 997 F.2d 139, 145 (6th Cir.1993) (holding that a court may only inquire as to the acceptance of responsibility for the offense of conviction, not illegal conduct generally). The defendant in Morrison was indicted for the receipt and possession of a firearm by a felon. He was released on bond and subsequently arrested for attempting to steal a pick-up truck. The defendant was found in constructive possession of a firearm, and he tested positive for a controlled substance. The court held that the district court properly considered Morrison’s possession of a firearm in determining whether he had accepted responsibility, but should not have considered conduct unrelated to the offense of conviction. In framing the issue on the unrelated criminal activity, the court noted: Some might argue that a defendant can recognize and affirm acceptance of responsibility for certain criminal activity while engaging in other criminal activity. On the other hand, it might be" }, { "docid": "23487608", "title": "", "text": "addresses the situation in which the intervening criminal activity is not the same or similar to the crime charged. Other circuits have spoken on this issue but are not in agreement. The First, Fifth, and Eleventh Circuits hold that a defendant is not entitled to a reduction if he or she has used a controlled substance while on release pending sentencing. The Sixth Circuit disagrees. In United States v. O’Neil, 936 F.2d 599 (1st Cir.1991), the defendant pleaded guilty to charges of breaking into a post office and stealing mail. While on bail awaiting sentencing, the defendant used marijuana and broke into a building. The district court refused to reduce his sentence under § 3E1.1, specifically pointing to his use of marijuana. On appeal, the defendant argued that the court could not require him to accept responsibility for uncharged conduct. Id. at 599. The First Circuit held that the district court properly considered defendant’s later conduct “for the light that conduct shed on the authenticity of appellant’s claimed remorse” for the charged offense. Id. at 600. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the defendant pleaded guilty to possessing treasury checks stolen from the mail. While on release pending sentencing, the defendant used cocaine. The district court found that the defendant’s statements concerning his guilt were sincere, but stated that his continued unlawful behavior was inconsistent with the acceptance of responsibility. The Fifth Circuit acknowledged that there was no direct basis for this interpretation in the Guidelines themselves, but commented that the Application Notes are phrased in general terms and do not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction. Id. at 985; see also United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990) (upholding refusal to reduce sentence when defendant charged with firearms violation attempted to acquire firearms and used controlled substance while on release). In United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990), the defendant pleaded" }, { "docid": "23487604", "title": "", "text": "for acceptance of responsibility because McDonald’s continued drug use showed that he had not withdrawn from criminal activity. Additionally, despite arguments by McDonald and the government that he was entitled to a four-level reduction because he was a minimal participant in the offense, the court reduced McDonald’s sentence only by two levels under § 3B1.2(b), finding he was a minor participant. II. Discussion A Acceptance of Responsibility A defendant’s offense level may be reduced by two levels if “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a) (Nov. 1992). “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, comment, (n. 5); see 18 U.S.C. § 3742(e); United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993). However, questions of law relating to a sentencing decision are reviewed de novo. United States v. Prevatte, 16 F.3d 767, 779 (7th Cir.1994). The Guidelines provide that in determining whether a defendant qualifies for the reduction a court may properly consider if the defendant “truthfully admitt[ed] the conduct comprising the offense(s) of conviction ...” and consider whether the defendant voluntarily has terminated or withdrawn from criminal conduct or associations. U.S.S.G. § 3E1.1, comment, (n.l(a) and (b)). The Guidelines do not directly address whether unrelated criminal activity engaged in by the defendant between the information or indictment and trial or sentencing is a sufficient basis for the district court to deny a downward departure for acceptance of responsibility. In reviewing the language of the Guidelines and corresponding application notes, however, we conclude that a sentencing judge is not prohibited from considering a defendant’s conduct, and specifically may consider criminal conduct or associations engaged in while a defendant is free on bond awaiting trial or sentencing. Our cases in which the reduction was denied generally involve similar criminal conduct to the charged offense. In United States v. Jordan, 890 F.2d 968 (7th Cir.1989), the defendant pleaded guilty to possession with intent to distribute cocaine. While free on" }, { "docid": "23305592", "title": "", "text": "car theft conspiracy, and any obstruction was entirely unrelated. We are unpersuaded. The Guidelines require the sentencing court to grant a reduction in offense level if the court finds that the defendant has “clearly demonstrate^] acceptance of responsibility for his offense.” Guidelines § 3E1.1. When the defendant has engaged in conduct resulting in an enhancement under § 3C1.1 for obstruction of justice, however, that conduct “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct,” and the aeceptance-of-responsibility adjustment may not be given unless the circumstances are “extraordinary.” Guidelines § 3E1.1 Application Note 4. One factor that the sentencing court may take into account in deciding whether a defendant has accepted responsibility is whether he has voluntarily terminated all criminal conduct. See, e.g., Guidelines § 3E1.1 Application Note 1(b); United States v. Olvera, 954 F.2d 788, 793 (2d Cir.) (reduction may be denied on the basis that the defendant has engaged in continuing criminal conduct), cert. denied, 505 U.S. 1211, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992). If a defendant commits a second crime after pleading guilty to, and while awaiting sentencing for, a first offense, that “is a relevant consideration in denying the acceptance-of-responsibility adjustment in selecting the sentence for that first offense.” United States v. Rodriguez, 928 F.2d 65, 67 (2d Cir.1991). “The second crime refutes the disavowal of future criminal activity implied by the guilty plea to the first crime.” Id. The assessment of a defendant’s contrition, credibility, and candor is a matter for the sentencing judge, see, e.g., United States v. Rivera, 96 F.3d 41, 43 (2d Cir.1996), and that judge’s unique position entitles his determination to “great deference on review,” Guidelines § 3E1.1 Application Note 5. Accordingly, the sentencing judge’s finding as to whether the defendant has adequately demonstrated an acceptance of responsibility will not be disturbed unless it is “without foundation.” See, e.g., United States v. Rivera, 96 F.3d at 43; United States v. Boothe, 994 F.2d 63, 70 (2d Cir.1993). In the present ease, the sentencing court viewed Fernandez’s conduct following his plea of guilty as mendacious and criminal activity" }, { "docid": "23236410", "title": "", "text": "that Mann’s agreement not to contest forfeiture was motivated more by Mann’s concern to improve his potential disposition than by true remorse. Finally, and perhaps most importantly, the district judge found that Mann was not entitled to a two point reduction for acceptance of responsibility because Mann continued to deal in cocaine while out on bond in this case. While on bond, Mann was arrested and found to be carrying six packets of cocaine. In United States v. Jordan, we held that a district court properly declined to award a defendant a two point reduction for acceptance of responsibility because the defendant continued to pursue drug trafficking while he was free on bond waiting to be sentenced for a drug trafficking conviction. 890 F.2d at 974. The same reasoning applies here where Mann continued to deal in cocaine after he was charged but before he pleaded guilty and was sentenced. Mann’s conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes. Mann also contests the district court's upward departure from the Guidelines sentencing range. We review departures to determine whether the grounds relied on for departure were proper and whether the degree of departure was reasonable. United States v. Schmude, 901 F.2d 555, 558-59 (7th Cir.1990); Jordan, 890 F.2d at 974, 977. The district judge based the departure on the ground that Mann became involved in a cocaine incident while out on bond for the cocaine charges in this case. This was a proper ground on which to depart. Guideline § 4A1.3 provides that a departure is permissible where “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes....[sjuch information may include, but is not limited to, information concerning: (e) prior similar adult criminal conduct not resulting in a criminal conviction.” In Jordan, we reasoned that a defendant’s Criminal History Category did not adequately account for the possibility that the defendant would commit future offenses when the defendant continued" }, { "docid": "22445689", "title": "", "text": "reduction. The sentencing guidelines allow a district court to reduce the defendant’s offense level by two if “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The commentary to the guidelines provides district courts with several factors to consider when evaluating whether a defendant has clearly demonstrated acceptance of responsibility. The factors relevant to the consideration of Dugger’s claim are: (a) truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct); (b) voluntary termination or withdrawal from criminal conduct or associations; (d) voluntary surrender to authorities promptly after the commission of the offense; ... (g) post-offense rehabilitative efforts; (h) timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n. 1. To earn the reduction, a defendant must prove to the court by a preponderance of the evidence “that he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct.” United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.1996). A guilty plea may be evidence of acceptance, but “it does not, standing alone, entitle a defendant to a reduction as a matter of right.” United States v. Harris, 882 F.2d 902, 905 (4th Cir.1989). We recognize that a “district court is not obligated to grant an unrepentant criminal a two-step reduction in return for grudgingly cooperating with authorities or merely going through the motions of contrition.” Id. at 905-06. The decision to grant an acceptance-of-responsibility reduction often depends on the actions of the defendant following his or her arrest or plea. Considering the activities in which Dugger engaged while he was in the detention center awaiting trial, we cannot find that the district court clearly erred by determining that Dugger did not truly accept responsibility for his offense and by denying the two-level reduction. Although Dugger admitted his drug dealing both in Huntington and inside the detention center, the fact that he chose to deal drugs while incarcerated undermines his claim that he sincerely regretted and accepted" }, { "docid": "9559667", "title": "", "text": "section 3E1.1 provides that the district court may reduce a defendant's offense level by two if \"the defendant clearly demonstrates a recognition and affirmative acceptance of responsibility for [her] criminal conduct.\" Panadero argues that she should have received the reduction because she not only pled guilty to the charges, but also freely provided potentially incriminating information to the government and the Israels (who had brought a civil action against her) regarding the fraudulent transactions. Although pleading guilty may demonstrate acceptance of responsibility, doing so does not automatically entitle a defendant to the reduction. U.S.S.G. § 3E1.1, App. Note 3; United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, U.S. 113 S.Ct. 419, 121 L.Ed.2d 341 (1992). Whether a defendant has accepted responsibility is a factual finding that depends primarily on credibility assessments. United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, - U.S. -, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). We will therefore overturn the sentencing court's determination only if it is clearly erroneous. United States v. Yanes, 985 F.2d 371, 374 (7th Cir.1993). Panadero bears the burden of demonstrating that the district court's finding was \"without foundation.\" United States v. White, 993 F.2d 147, 151 (7th Cir.1993). She has failed to do so. The district court rested its decision on two grounds. First, the court found that Panadero did not quali~r for the reduction because she had continued to engage in criminal activity following her arrest. We approved this basis for denying the reduction in United States v. Franklin, 902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). See also United States v. Jordan, 890 F.2d 968, 974 (7th Cir.1989). The district court clearly did not err here in finding that a defendant who had defrauded several banks while awaiting disposition of similar charges had not accepted responsibility for her criminal conduct. The court also denied the reduction because it found Panadero's acceptance of responsibility to be insincere. Although Pa-nadero contends that this finding was \"simply stated, in essence, without more\" (Pa-nadero Brief" }, { "docid": "22851306", "title": "", "text": "substance, smuggled a controlled substance into the prison where he was awaiting sentencing), cert. denied, — U.S. -, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992); United States v. Cooper, 912 F.2d 344, 345-48 (9th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with fraud, became involved in additional fraudulent activity); United States v. Wivell, 893 F.2d 156, 158-59 (8th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with attempted possession of cocaine with intent to distribute, dealt in cocaine while he was on bond awaiting disposition of the case). Courts have also upheld district court denials of an acceptance of responsibility reduction which look to criminal conduct related to, but not of the same type, as the underlying offense. See, e.g., United States v. Barrett, 890 F.2d 855, 868-69 (6th Cir.1989) (acceptance of responsibility denied where defendant threatened government informant and witness); United States v. Davis, 878 F.2d 1299, 1300-01 (11th Cir.) (acceptance of responsibility reduction denied where defendant, charged with conspiracy to possess with intent to distribute cocaine, continued to use drugs while out on bond), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (acceptance of responsibility reduction denied where defendant, charged with postal theft, “had not turned away from the lifestyle that had motivated his offense of conviction,” viz., cocaine use), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And courts will uphold denials of an acceptance of responsibility reduction where the pre-sentencing criminal conduct is both of the same type and otherwise related to the underlying offense. See, e.g., United States v. Jordan, 890 F.2d 968, 973-74 (7th Cir.1989) (acceptance of responsibility denied where defendant, charged with possession with intent to distribute cocaine, participated in two separate instances of drug dealing, and used cocaine, while awaiting sentencing). At least one case is directly on point. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the Fifth Circuit reviewed a case where the defendant, having pled guilty to passing forged treasury checks and to possessing treasury checks" }, { "docid": "23487605", "title": "", "text": "a defendant qualifies for the reduction a court may properly consider if the defendant “truthfully admitt[ed] the conduct comprising the offense(s) of conviction ...” and consider whether the defendant voluntarily has terminated or withdrawn from criminal conduct or associations. U.S.S.G. § 3E1.1, comment, (n.l(a) and (b)). The Guidelines do not directly address whether unrelated criminal activity engaged in by the defendant between the information or indictment and trial or sentencing is a sufficient basis for the district court to deny a downward departure for acceptance of responsibility. In reviewing the language of the Guidelines and corresponding application notes, however, we conclude that a sentencing judge is not prohibited from considering a defendant’s conduct, and specifically may consider criminal conduct or associations engaged in while a defendant is free on bond awaiting trial or sentencing. Our cases in which the reduction was denied generally involve similar criminal conduct to the charged offense. In United States v. Jordan, 890 F.2d 968 (7th Cir.1989), the defendant pleaded guilty to possession with intent to distribute cocaine. While free on bond awaiting sentencing, the defendant used cocaine and engaged in drug trafficking. The district court found that he was not entitled to a two-level reduction for acceptance of responsibility. In affirming the district court’s sentence, this court held that “[j]ust as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sen tencing for dealing in that drug is consistent with acceptance of responsibility for that crime.” Id. at 974. Similarly, in United States v. Panadero, 7 F.3d 691 (7th Cir.1993), the defendant engaged in fraudulent transactions, and while released on bond engaged in bank fraud. The court held that the defendant did not qualify for the reduction because she continued to engage in criminal activity following her arrest. The court did not explicitly rely on the similarity of the crimes in upholding the district court’s refusal to reduce her sentence under § 3E1.1. In United States v. Franklin, 902 F.2d 501, 506 (7th Cir.)," }, { "docid": "23169397", "title": "", "text": "the point of this provision. Wivell apparently interprets the two-point reduction for acceptance of responsibility as statutory bait for a guilty plea. But acceptance of responsibility means what it says: a defendant must sincerely have accepted responsibility for his crime. While the sentencing judge cannot peer into the defendant's heart to discover whether a defendant is genuinely contrite, he can look for outward manifestations of acceptance of responsibility, such as those listed in the Guidelines. A defendant's calculated simulations of remorse, however, do not automatically entitle him to a discount in his sentence for acceptance of responsibility. Thus, the Guidelines specifically deny an absolute right to a two-point reduction on the basis of a guilty plea, U.S.S.G. § 3El.l(c), and emphasize that “the sentencing judge is in a unique position” to determine whether the defendant has accepted responsibility for his acts. Id. at comment, (n.5). A reviewing court should give “great deference” to a lower court’s conclusion regarding this matter, disturbing it on appeal only if it is “without foundation.” Id.; United States v. Thompson, 876 F.2d 1381, 1384 (8th Cir.), cert. denied, - U.S. -, 110 S.Ct. 192, 107 L.Ed.2d 147 (1989). Applying that standard of review, we do not believe the District Court’s determination was “without foundation.” The District Court specifically found that Wivell’s arrest for dealing in cocaine while he was on bond awaiting disposition of this case was a clear indication that he was continuing his criminal course of conduct, and thus the court concluded that Wivell was not entitled to credit for acceptance of responsibility, despite his guilty plea, his expression of remorse, and his expression of a need for drug treatment. We deny Wi-vell’s request to vacate the sentence on this ground. III. Wivell also challenges the acceptance of responsibility provision of the Guidelines as unconstitutionally vague both on its face and as applied to him. We must flatly reject both arguments because the Sentencing Guidelines are simply not susceptible to a vagueness attack. The vagueness doctrine holds that a person cannot be held liable for conduct he could not reasonably have been expected" }, { "docid": "14297845", "title": "", "text": "KENNEDY, Circuit Judge. Laura Payne Lassiter (“defendant”) pled guilty to an Information charging her with one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court sentenced defendant to 120 months incarceration. Defendant appeals her sentence, claiming that the District Court erred by denying a reduction for acceptance of responsibility pursuant to section 3El.l(a) of the federal sentencing guidelines and by departing upward from the federal sentencing guidelines. For the following reasons, we VACATE defendant’s sentence and REMAND this case for resen-tencing. I. On August 24, 1988, police officers arrested defendant for distribution of cocaine. Defendant entered into a plea agreement with the government which provided that defendant would plead guilty to an Information charging one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and would testify against other individuals. In exchange, the government agreed not to file additional narcotics-related charges and to file a motion for a departure downward from the federal sentencing guidelines’ sentencing range based on her substantial assistance. Defendant and the government fulfilled their obligations under the plea agreement. On February 6, 1990, subsequent to her guilty plea and testimony but prior to her sentencing, police arrested defendant on state charges of illegal drug activity. At the pre-sentence hearing, the District Court noted that defendant admitted to possessing close to a kilogram of cocaine at the time of this arrest. Defendant was on bond at the time. Evidence also showed that officers found $82,000 at defendant’s residence, money which the District Court found to be illegal drug proceeds. The probation officer determined that defendant’s criminal history points totaled three, thereby establishing a criminal history category of II. The base offense level was established at 26 and the probation officer recommended a two-point reduction for acceptance of responsibility. This resulted in a recommended sentencing range of 57 to 71 months. The District Court held that defendant was not entitled to a reduction for acceptance of responsibility in view of her illegal conduct while on bond. The District Court also concluded that defendant’s arrest while on bond warranted departure" }, { "docid": "17187749", "title": "", "text": "the district court had exercised its discretion properly in denying the reduction, the Seventh Circuit remarked that: Just as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sentencing for dealing in that drug is consistent with acceptance of responsibility for that crime. Id. at 974; see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (holding that the defendant’s arrest for drug dealing while he was out on bond awaiting sentencing justified the district court’s decision to deny the 3E1.1 credit, even though defendant had pled guilty and expressed remorse and a need for drug treatment); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (no clear error in district court’s decision to deny award of two-point reduction for acceptance of responsibility based on conclusion that defendant’s continued drug use while out on bond was inconsistent with having accepted responsibility for her criminal conduct), cert. denied, — U.S.-, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989). Similarly, Cooper’s subsequent fraudulent purchase of the car detracts from the credibility of her expressions of remorse for the fraudulent activities of which she was convicted. In the original PSR the probation officer noted that the investigation by Secret Service agents revealed that, although Cooper claimed in her statement that she had terminated all fraudulent behavior once she separated from her husband, in fact she had continued to use fraudulently acquired credit cards for two months after that time. Considered alone this information was insufficient to prevent him from recommending that the district court award Cooper the two-level reduction for acceptance of responsibility, but, viewed together with the subsequently discovered evidence of an even longer period of continued fraudulent activity than Cooper had acknowledged and expressed remorse for, the probation officer revised his estimation of Cooper’s sincerity and withdrew the recommendation in the supplemental PSR. After hearing the" }, { "docid": "17187748", "title": "", "text": "reduction under 3E1.1, despite the defendant’s surrender to police upon learning of the outstanding warrant for his arrest and guilty plea. Observing that “the ‘Background ’ explanation to § 3E1.1 suggests that a showing of ‘sincere remorse’ by the accused is the underlying rationale for reducing a sentence,” it held that the district court “had every reason to conclude that Sanchez’s involvement with firearms and controlled substances demonstrated a lack of remorse to justify [the] reduction.” Id. at 681 (citing United States v. Jordan, 890 F.2d 968 (7th Cir.1989)). In Jordan the district court denied the defendant’s request for the reduction on the basis of his undisputed participation in two separate incidents of drug-related activity (use of cocaine and dealing to minors) during the presentence period. 890 F.2d at 974. It acknowledged Jordan’s plea of guilty and admission of responsibility for the offense of conviction, but nevertheless “was persuaded that ‘this is one of those cases where the old adage actions speak louder than words certainly comes into play.’ ” Id. at 971. Finding that the district court had exercised its discretion properly in denying the reduction, the Seventh Circuit remarked that: Just as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sentencing for dealing in that drug is consistent with acceptance of responsibility for that crime. Id. at 974; see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (holding that the defendant’s arrest for drug dealing while he was out on bond awaiting sentencing justified the district court’s decision to deny the 3E1.1 credit, even though defendant had pled guilty and expressed remorse and a need for drug treatment); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (no clear error in district court’s decision to deny award of two-point reduction for acceptance of responsibility based on conclusion that defendant’s continued" }, { "docid": "22851305", "title": "", "text": "States v. Snyder, 913 F.2d 300 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). In both of these cases, however, the “continuing criminal activity” was of the same type as the underlying offense. To the same effect is the Sixth Circuit case of United States v. Reed, 951 F.2d 97 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1700, 118 L.Ed.2d 409 (1992), where we affirmed the district court’s refusal to give an acceptance of responsibility reduction. In that case, the defendant, while in jail pending sentencing for credit card fraud, engaged in further fraud from a jail telephone. See also United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992) (acceptance of responsibility reduction denied where defendant, who had been arrested and indicted under the Mann Act, “continued [his] behavior of sexually molesting young boys” while out on bond); United States v. Olvera, 954 F.2d 788, 793 (2d Cir.) (acceptance of responsibility reduction denied, in part, where defendant, who was convicted of conspiring to distribute a controlled substance, smuggled a controlled substance into the prison where he was awaiting sentencing), cert. denied, — U.S. -, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992); United States v. Cooper, 912 F.2d 344, 345-48 (9th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with fraud, became involved in additional fraudulent activity); United States v. Wivell, 893 F.2d 156, 158-59 (8th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with attempted possession of cocaine with intent to distribute, dealt in cocaine while he was on bond awaiting disposition of the case). Courts have also upheld district court denials of an acceptance of responsibility reduction which look to criminal conduct related to, but not of the same type, as the underlying offense. See, e.g., United States v. Barrett, 890 F.2d 855, 868-69 (6th Cir.1989) (acceptance of responsibility denied where defendant threatened government informant and witness); United States v. Davis, 878 F.2d 1299, 1300-01 (11th Cir.) (acceptance of responsibility reduction denied where defendant, charged with conspiracy to possess with intent to distribute cocaine, continued to use drugs" } ]

[ { "docid": "23075071", "title": "", "text": "See In re Para, 269 Fed. 643, 646; Petition of Charr, 273 Fed. 207, 213. When the act of 1918 was passed, it was doubtful whether § 30 of the act of 1908 extended , the privilége of naturalization to all citizens \"of the Philippine Islands. They were held eligible for naturalization in In re Bautista, 245 Fed. 765, and in In re Mallari, 239 Fed. 416. And see 27 Op. Atty. Gen. 12. They were held not eligible in In re Alverto, 198 Fed. 688, in In re Lampitoe, 232 Fed. 382, and in In re Rallos, 241 Fed. 686. But we hold that until the passage, of that act, Filipinos not heing “ free white persons ” or “ of African nativity ” were not eligible, and that the effect of the act of 1918 was to make eligible, and to.authorize the naturalization of, nativebom Filipinos of whatever color or race having the qualifications specified in the seventh subdivision of § 4. Under the treaty of peace between the United States and Spain, December 10, 1898, 30 Stat. 1754, Congress was'authorized to determine the civil rights and political status of the native inhabitants of the Philippine Islands. And by the act of July 1, 1902, § 4, c. 1369, 32 Stat. 691, 692, it was declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then resided in the Islands, and their childreq born subsequent thereto, “ shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain,” according to the treaty. The citizens of the Philippine Islands are not aliens. See Gonzales v. Williams, 192 U. S. 1, 13. They owe no allegiance to any foreign government. They were not eligible for naturalization under § 2169 because not. aliens and so not within its -terms. By § 30 of the Act of 1906, it is provided: “ That all the applicable provisions of" } ]

[ { "docid": "22834384", "title": "", "text": "codified by Congress in the Immigration and Nationality Act of 1952. At the time respondent came to the continental United States, he was not arriving “from some foreign port or place.” On the contrary, he was a United States national moving from one of our insular possessions to the mainland. It was not until the 1934 Philippine Independence Act that the Philippines could be regarded as “foreign” for immigration purposes. Having made no “entry,” respondent is not deportable under § 19 (a) as an alien who “after entry” committed crimes involving moral turpitude. The Government warns that this conclusion is inconsistent with a broad congressional purpose to terminate the United States residence of alien criminals. But we believe a different conclusion would not be permissible in view of the well-settled meaning of “entry” in § 19 (a). Although not penal in character, deportation statutes as a practical matter may inflict “the equivalent of banishment or exile,” Fong Haw Tan v. Phelan, 333 U. S. 6, 10, and should be strictly construed. See Delgadillo v. Carmichael, 332 U. S. 388, 391. In the absence of explicit language showing a contrary congressional intent, we must give technical words in deportation statutes their usual technical meaning. The judgment of the Court of Appeals is Affirmed. From the Spanish cession in 1898 until final independence in 1946, the Philippine Islands were American territory subject to the jurisdiction of the United States. See Hooven & Allison Co. v. Evatt, 324 U. S. 652, 674-676. Persons born in the Philippines during this period were American nationals entitled to the protection of the United States and conversely owing permanent allegiance to the United States. They could not be excluded from this country under a general statute relating to the exclusion of “aliens.” See Gonzales v. Williams, 192 U. S. 1, 12-13; Toyota v. United States, 268 U. S. 402, 411. But, until 1946, neither could they become United States citizens. See Toyota v. United States, supra; 60 Stat. 416. In the Volpe case, the Court stated: “We accept the view that the word ‘entry’ ... [in §" }, { "docid": "22553487", "title": "", "text": "though having acquired a commercial domicil in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping v. United States, 130 U. S. 581; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Wong Wing v. United States, 163 U. S. 228. In Fong Yue Ting v. United States, the right of the United States to expel such Chinese persons was placed upon the grounds, that the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and indepen dent nation, essential to its safety, its independence and its welfare ; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the'Constitution, to intervene; that'the power to exclude and the power to expel aliens rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and, therefore, that the power of Congress to expel, like the power to. exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien’s right to be in the country has been made by Congress to depend. 149 ti. S. 711, 713, 714. In Lem Moon Sing v. United States, the same principles were reaffirmed, and were applied to a Chinese person, born 'in China," }, { "docid": "23154035", "title": "", "text": "by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.” The majority expressly declines to rule on the constitutional questions raised by §401 (j). My views on a statute of this sort are set forth in my opinion in Trop v. Dulles, post, p. 86, decided this day, involving similar problems raised by § 401 (g) of the Nationality Act, 54 Stat. 1169, as amended, 8 U. S. C. § 1481 (8). See Borchard, Diplomatic Protection of Citizens Abroad (1916), §8; 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), §§291-294; Holborn, The Legal Status of Political Refugees, 1920-1938, 32 Am. J. Int’l L. 680 (1938); Preuss, International Law and Deprivation of Nationality, 23 Geo. L. J. 250 (1934); Study on Statelessness, U. N. Doc. No. E/1112 (1949); 64 Yale L. J. 1164 (1955). See Konvitz, The Alien and the Asiatic in American Law (1946); Comment, 20 U. of Chi. L. Rev. 547 (1953). Cf. Takahashi v. Fish & Game Commission, 334 U. S. 410; Oyama v. California, 332 U. S. 633. Harisiades v. Shaughnessy, 342 U. S. 580; Fong Yue Ting v. United States, 149 U. S. 698. Even if Congress can divest United States citizenship, it does not necessarily follow that an American-born expatriate can be deported. He would be covered by the statutory definition of “alien,” 8 U. S. C. § 1101 (a) (3), but he would not necessarily have come “from a foreign port or place” and hence may not have effected the “entry,” 8 U. S. C. §1101 (a) (13), specified in the deportation provisions, 8 U. S. C. § 1251. More fundamentally, since the deporting power has been held to be derived from the power to exclude, Fong Yue Ting v. United States, supra, it may well be that this power does not extend to persons born in this country. As to them, deportation would perhaps find its justification only as a punishment, indistinguishable from banishment. See dissenting opinions in United States v. Ju Toy," }, { "docid": "22371841", "title": "", "text": "hearing. We are asked to pass upon the validity of this action. At the outset we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides. Nishimura Ekiu v. United States, 142 U. S. 651, 659; Fong Yue Ting v. United States, 149 U. S. 698, 711. Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power. But there is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Fong Yue Ting v. United States, 149 U. S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U. S. 651, 659-660; Fong Yue Ting v. United States, 149 U. S. 698, 713-714; Ludecke v." }, { "docid": "22318196", "title": "", "text": "readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel’s ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests — a balance we find unnecessary here in light of the discussion that follows in Part Y — we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access. V Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U. S. 581, 609 (1889), and in Fong Yue Ting v. United States, 149 U. S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government . . . Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service, 387 U. S. 118, 123 (1967). “[O] ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 339 (1909). In Lem Moon Sing v. United States, 158 U. S. 538, 547 (1895), the first Mr. Justice Harlan said: “The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is" }, { "docid": "22371842", "title": "", "text": "affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Fong Yue Ting v. United States, 149 U. S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U. S. 651, 659-660; Fong Yue Ting v. United States, 149 U. S. 698, 713-714; Ludecke v. Watkins, 335 U. S. 160. Cf. Yamataya v. Fisher, 189 U. S. 86, 101. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e. g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. What was said in Lichter v. United States, 334 U. S. 742, 785, is equally appropriate here: “It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. . . . Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. ‘They" }, { "docid": "22756634", "title": "", "text": "to the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of. the Constitution to be protected in life, liberty and property. This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States.' Yick Wo v. Hopkins, 118 U. S. 356; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538, 547; Wong Wing v. United States, 163 U. S. 228. We do'not desire, however, to anticipate the difficulties which would naturally arise in this connection, but merely to disclaim any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect. Large powers must necessarily be'entrusted to Congress in dealing with these problems, and we are bound to assume that they will be judiciously exercised. That these powers may be •abused is possible. But the same may be said of its powers under the Constitution as well as outside of it. Human wisdom has never devised a form of government so perfect that it may not be perverted to bad purposes. It is never conclusive to argue against the possession of certain powers from possible abuses of them. It is safe to say that if Congress should venture upon legislation manifestly dictated by selfish interests, it would receive quick rebuke at the hands of the people. Indeed, it is scarcely possible that Congress could do a greater injustice to these islands than would be involved in holding that it could not impose upon the States taxes and excises without extending the same taxes to them. Such requirement would bring them at once within our internal revenue system, including stamps, licenses, excises and all the paraphernalia of that system, and applying it to territories which have had no experience of this kind, and where it would’ prove an intolerable" }, { "docid": "5270594", "title": "", "text": "have set forth regarding the exercise of discretion by the Attorney General are observed.” (Emphasis supplied.) In approaching questions involving the admission or expulsion of aliens it should be remembered, and it has been repeatedly affirmed by the courts, that this function may be conferred upon the executive branch of the government by the Congress and the judiciary has only such authority to interfere as may be delegated to it. . , In Wong Wing et al. v. U. S., 163 U.S. 228, 16 S.Ct. 977, 978, 41 L.Ed. 140, the court stated: “But this court held, in the case of Fong Yue Ting v. U. S., 149 U.S. 698, 13 S.Ct. 1016 [37 L.Ed. 905], that the right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation; that the power of congress to expel, like the power to exclude, aliens or any class of aliens from the country, may be exercised entirely through executive officers; and that the said sixth section of the act of May 5, 1892 [8 U.S. C.A. § 287], was constitutional and valid. ****** “‘The power of congress to .exclude aliens altogether from the United States, or to prescribe’ the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.’ ” The same thought is expressed in U. S. ex rel. Carapa v. Curran, etc., 2 Cir., 297 F. 946, 952, where the following language is used: “It is, however, to be observed that the provision above quoted applies to the case of a person arrested or imprisoned on process issued from any court of the United States in any civil action. An alien who is denied the right to enter the United States and who is held by the immigration authorities for deportation is not held on process issued ‘from any court of the United States" }, { "docid": "5613157", "title": "", "text": "the United States and are therefore not subject to deportation. I cannot accept this view. The Independence Act did not distinguish between resident and non-resident Filipinos. And as has been pointed out, no court prior to the very recent Man-gaoang case had ever held or even inferred that the word “entry” in the expulsion statutes meant entry by an alien only. If we today give the word this peculiar and highly technical construction and conclude therefrom that Congress meant to except resident Filipinos when it made Philippine citizens “aliens” for the purposes of the expulsion statutes, we attribute a remarkable subtlety of expression to that legislative body. It seems incredible to me that Congress meant to exclude the great body of Filipinos residing in the United States in 1934 from the sweep of § 8 of the Independence Act when it did not do so in express terms. I think the Independence Act meant exactly what it said; that by that Act Filipinos not citizens of the United States were made subject to the expulsion provisions of our immigration acts. The language included both resident and non-resident Filipinos. This being so, Gonzales became subject to the expulsion statutes upon passage of the Independence Act and remained so subject when he became an alien by the Proclamation of Philippine Independence in 1946. From the available evidence on the subject, I conclude that the majority’s strained construction of § 19 of the' Immigration Act flies in the face of a clear congressional purpose. Despite the statements in the majority opinion in the Mangaoang case, Del Guercio v. Gabot, supra, is not opposed to the view here expressed. In that case (Del Guercio v. Gabot) this court held (1) that where a Filipino was sought to be deported under, so much of § 19 of the Immigration Act of 1917 as provided for expulsion upon conviction of crimes committed “within five years after entry”, the entry was an essential element of the deportable conduct; and (2) the Independence Act would therefore not be retroactively applied to stamp the coming of the Filipino into" }, { "docid": "5613156", "title": "", "text": "the United States prior to its passage) were made subject to the alien deportation statutes, it could hardly be contended that somehow and in some undisclosed manner they obtained complete immunity from deportation when the Independence Act became obsolete and Filipinos became aliens by the Proclamation of Philippine Independence in 1946, Proclamation No. 2695, 22 U.S.C.A. § 1394 note. Section 8 of the Philippine Independence Act provided in pertinent part that “For the purposes of the Immigration Act of 1917 * * * and all other laws * * * relating to the * * * expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens.” Under the majority opinion an exception must be read into this provision. Insofar as the liability of Filipinos to expulsion is concerned, the majority would say that the Independence Act did not apply to those who on its effective date were residents of the United States. For these Filipinos, they say, made no “entry” into the United States and are therefore not subject to deportation. I cannot accept this view. The Independence Act did not distinguish between resident and non-resident Filipinos. And as has been pointed out, no court prior to the very recent Man-gaoang case had ever held or even inferred that the word “entry” in the expulsion statutes meant entry by an alien only. If we today give the word this peculiar and highly technical construction and conclude therefrom that Congress meant to except resident Filipinos when it made Philippine citizens “aliens” for the purposes of the expulsion statutes, we attribute a remarkable subtlety of expression to that legislative body. It seems incredible to me that Congress meant to exclude the great body of Filipinos residing in the United States in 1934 from the sweep of § 8 of the Independence Act when it did not do so in express terms. I think the Independence Act meant exactly what it said; that by that Act Filipinos not citizens of the United States were made subject to the expulsion" }, { "docid": "23497992", "title": "", "text": "They arc not in any sense independent governments; they have no Senators in Congress and no Representatives in the lower house of that body, except what are called Delegates, with limited functions. Yet they exercise nearly all the powers of government, under what are generally called organic acts passed by Congress conferring such powers on them. It is this class of governments, long known by the name of Territories, that the act of Congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction. “Oklahoma was not of this-class of Territories. It had no legislative body. It had no government. It had no established or organized system of government for the control of the people within its limits, as the Territories of the United States have and have always had. We are therefore of opinion that the objection taken on this point by the counsel for prisoner is unsound.” Oklahoma was given a territorial government by the act'of May 2, 1890,26 Stat. 81, §§ 1 to 100, chap. 182. In Gonzales v. Williams, 192 U. S. 15, the court unanimously held that a citizen of Porto Rico was not an alien immigrant, and among other things an opinion of Attorney General Knox, relating to a Porto Rican named Molinas, was quoted from as follows: ' “He [i. e., Molinas] is also clearly a Porto Rican; that is to say, a permanent inhabitant of that island, which was also turned over by Spain to the, United States. As his country became a. domestic country and ceased to be a foreign country within the meaning of the tariff act above referred to, and has now been fully organized as a country of the United States by the Foraker act, it seems to me that hé uas £>é’c,ame an American, notwithstanding such supposed omission.-' It may-be justly asserted that Porto Rico is a completely organized'Territory, although not a Territory incorporated into the United States, and that there is no-reason why Porto Rico' should not be held to be such, a" }, { "docid": "22051956", "title": "", "text": "if the Philippines were a separate country, and in that connection extended to Filipinos the immigration laws relating to the exclusion or expulsion of aliens. It also provided, 48 U. S. C. § 1238 (a) (2), that citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For purposes of 8 U. S. C. §§ 154 and 156, relating to deportation, the Philippine Islands are declared to be a foreign country. 48 U. S. C. § 1238 (a) (4). Foreign service officers of the United States may be assigned to the Philippines, and are to be considered as stationed in a foreign country. 48 U. S. C. § 1238a. And the Independence Act, § 6, 48 Stat. 456, 460, provides that “when used in this section in a geographical sense, the term ‘United States’ includes all Territories and possessions of the United States, except the Philippine Islands, the Virgin Islands, American Samoa, and the island of Guam.” As we have said, the Philippines have frequently dealt with other countries as a sovereignty distinct from the United States. The United States acquired the Philippines by cession without obligation to admit them to statehood or incorporate them in the Union of states or to make them a part of the United States, as distinguished from merely belonging to it. As we have seen, they are not a part of the United States in the sense that they are subject to and enjoy the benefits or protection of the Constitution, as do the states which are united by and under it. In particular, the constitutional provisions governing imports and exports and their taxation, do not extend to articles brought into or out of the Philippines. The several acts of Con-gressproviding for the government of the Philippines have not altered their status in these respects, and Congressional legislation governing trade relations of the United States with the Philippines has not only been consistent with that status, but has often treated articles brought from the Philippines to the United States as imports. Our tariff" }, { "docid": "22051955", "title": "", "text": "The Sugar Quota Law, 7 U. S. C. § 608a (1), defined as imports the amounts of sugar permitted to be brought into the United States from the Philippines, and prohibited such importation in excess of prescribed quotas. The Act of June 14,1935, c. 240, 49 Stat. 340, 48 U. S. C. § 1236a, provided for restriction of the amount of hard fibers and its products which could be brought annually from the Philippines to the United States. See also 48 U. S. C. § 1236. And the Independence Act, supra, 48 U. S. C. § 1236 (a) (b), also regulated the amount of “export tax” which might be levied by the Philippines on articles shipped to the United States from the Philippine Islands. The Independence Act, while it did not render the Philippines foreign territory, Cincinnati Soap Co. v. United States, supra, 318-320, treats the Philippines as a foreign country for certain purposes. In 48 U. S. C. § 1238 (a) (1), it established immigration quotas for Filipinos coming to the United States, as if the Philippines were a separate country, and in that connection extended to Filipinos the immigration laws relating to the exclusion or expulsion of aliens. It also provided, 48 U. S. C. § 1238 (a) (2), that citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For purposes of 8 U. S. C. §§ 154 and 156, relating to deportation, the Philippine Islands are declared to be a foreign country. 48 U. S. C. § 1238 (a) (4). Foreign service officers of the United States may be assigned to the Philippines, and are to be considered as stationed in a foreign country. 48 U. S. C. § 1238a. And the Independence Act, § 6, 48 Stat. 456, 460, provides that “when used in this section in a geographical sense, the term ‘United States’ includes all Territories and possessions of the United States, except the Philippine Islands, the Virgin Islands, American Samoa, and the island of Guam.” As we have said, the Philippines have" }, { "docid": "23154036", "title": "", "text": "v. Fish & Game Commission, 334 U. S. 410; Oyama v. California, 332 U. S. 633. Harisiades v. Shaughnessy, 342 U. S. 580; Fong Yue Ting v. United States, 149 U. S. 698. Even if Congress can divest United States citizenship, it does not necessarily follow that an American-born expatriate can be deported. He would be covered by the statutory definition of “alien,” 8 U. S. C. § 1101 (a) (3), but he would not necessarily have come “from a foreign port or place” and hence may not have effected the “entry,” 8 U. S. C. §1101 (a) (13), specified in the deportation provisions, 8 U. S. C. § 1251. More fundamentally, since the deporting power has been held to be derived from the power to exclude, Fong Yue Ting v. United States, supra, it may well be that this power does not extend to persons born in this country. As to them, deportation would perhaps find its justification only as a punishment, indistinguishable from banishment. See dissenting opinions in United States v. Ju Toy, 198 U. S. 253, 264; Fong Yue Ting v. United States, supra, at 744. Since this action for a declaratory judgment does not involve the validity of the deportation order against petitioner, it is unnecessary, as the Government points out, to resolve the question of whether this petitioner may be deported. U. S. Const., Art. I, § 8, cl. 4. See, e. g., Knauer v. United States, 328 U. S. 654; Baumgartner v. United States, 322 U. S. 665; Schneiderman v. United States, 320 U. S. 118. Act of July 27, 1868, 15 Stat. 223. Ibid. See Savorgnan v. United States, 338 U. S. 491, 498 and n. 11; Foreign Relations, 1873, H. R. Exec. Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, 1186-1187, 1204, 1210, 1213, 1216, 1222 (views of President Grant’s Cabinet members); 14 Op. Atty. Gen. 295; Tsiang, The Question of Expatriation in America Prior to 1907, 97-98, 108-109. See Shanks v. Dupont, 3 Pet. 242; Inglis v. Trustees of Sailor’s Snug Harbour, 3 Pet. 99. 3 Moore, Digest" }, { "docid": "16286833", "title": "", "text": "violation of its immigration laws, may be deported. Aliens have no right to enter the United States from a foreign country clandestinely. If they so come, they are subject to deportation. “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Fong Yue Ting v. United States, 149 U. S. 698, 705, 13 Sup. Ct. 1016, 37 L. Ed. 905; Wong Wing v. United States, 163 U. S. 228, 231, 16 Sup. Ct. 977, 41 L. Ed. 140; Nishimura Ekiu v. United States, 142 U. S. 651, 654, 12 Sup. Ct. 336, 35 L. Ed. 1146; Chinese Exclusion Case, 130 U. S. 581, 606, 9 Sup. Ct. 623, 32 L. Ed. 1068; U. S. ex rel. Turner v. Williams, 194 U. S. 279, 24 Sup. Ct. 719, 48 L. Ed. 979; Passenger Oases, 7 How. 525, 12 L. Ed. 702, Woodbury, J., dissenting.” Section 36 of the Immigration Act (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 [Comp. St. 1913, § 4285], as amended by Act March 26, 1910 [chapter 128, 36 Stat. 263] and Act March 4, 1913 [chapter 141, 37 Stat. 736]) provides as follows: “That all aliens who shall enter the United States except at the seaports thereof, or at such place .or places as the Secretary of Labor may from time to time designate, shall be adjudged to have entered the country unlawfully and shall be deported as provided by, sections twenty and twenty-one of this act: Provided, that nothing contained in this section shall affect the power conferred by section thirty-two of this act upon the Commissioner General of Immigration to prescribe rules for tbe entry and inspection of aliens along tbe borders of Canada and Mexico.” Ports of entry have been established, and alien immigrants must come through such ports of entry, whether entering the United States by land or sea. If" }, { "docid": "22433700", "title": "", "text": "of speech or of the press.” Repeated decisions of this court have determined that Con- ■ gress has the power to exclude aliens from the United States; to prescribe the terms and conditions on; which they may come. in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of an alien who is found tó be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right of trial by jury have no application. Chae Chan Ping v. United States, 130 U. S. 581; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Wong Wing v. United States, 163 U. S. 228; Fok Yung Yo v. United States, 185 U. S. 296; Japanese Immigrant Case, 189 U. S. 86; Chin Bak Kan v. United States, 186 U. S. 193; United States v. Sing Tuck, 194 U. S. 161. In the case last cited the distinction-on which Gonzales v. Williams, 192 U. S. 1, 'turned was pointed, out. The question whether a citizen of-Porto Rico, under the. treaty of. cession and the act of April 12, 1900, came within the. immigration law of March 3, 1891, was- purely a question of law, which being decided in the negative all questions of fact became immaterial. In the present case alienage was conceded and was not in dispute, and it was the quéstion of fact thereupon arising that was passed-on by the Board, and by the Secretary on appeal. Whether rested on the accepted, principle of international law that every sovereign nation has the power, as inherent in. sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit •to prescribe; or on" }, { "docid": "22619712", "title": "", "text": "the control of another power.” Chae Chan Ping v. United States, 130 U. S. 581, 603-604 (1889). “The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively ... is settled by our previous ad judications.” Lem Moon Sing v. United States, 158 U. S. 538, 547 (1895). See also Fong Yue Ting v. United States, 149 U. S. 698, 711 (1893); Yamataya v. Fisher, 189 U. S. 86, 97-99 (1903); United States ex rel. Turner v. Williams, 194 U. S. 279, 289-290 (1904); Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 335-336 (1909); United States ex rel. Volpe v. Smith, 289 U. S. 422, 425 (1933). Since 1875, Congress has given “almost continuous attention ... to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control . . . .” Kleindienst v. Mandel, supra, at 761-762. It was only as the illegal entry of aliens multiplied that Congress addressed itself to enforcement mechanisms. In 1917, immigration authorities were authorized to board and search all conveyances by which aliens were being brought into the United States. Act of Feb. 5, 1917, § 16, 39 Stat. 886. This basic authority, substantially unchanged, is incorporated in 8 U. S. C. § 1225 (a). In 1946, it was represented to Congress that “[i]n the enforcement of the immigration laws it is at times desirable to stop and search vehicles within a reasonable distance from the boundaries of the United States and the legal right to do so should be conferred by law.” H. R. Rep. No. 186, 79th Cong., 1st Sess., 2 (1945). The House Committee on Immigration and Naturalization was “of the opinion that the legislation is highly desirable,” ibid., and its counterpart in the Senate, S. Rep. No. 632, 79th Cong., 1st Sess., 2 (1945), stated that “[t]here is no question but that this is a step in the right" }, { "docid": "22559430", "title": "", "text": "no alien so situated “can force us to admit him at all.” Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. The Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U. S. 698 (1893); Knauff v. Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife. That authorization, originally enacted in the Passport Act of 1918, continues in effect during the present emergency. Under it, the Attorney General, acting for the President, may shut out aliens whose “entry would be prejudicial to the interests of the United States.” And he may exclude without a hearing when the exclusion is based on confidential information the disclosure of which may be prejudicial to the public interest. The Attorney General in this case proceeded in accord with these provisions; he made the necessary determinations. and barred the alien from entering the United States. It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U. S. 86, 100-101 (1903); Wong Yang Sung v. McGrath, 339 U. S. 33, 49-50 (1950); Kwong Hai Chew v. Colding, 344 U. S. 590, 598 (1953). But an alien on the threshold of initial entry stands on a different footing: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Knauff v. Shaughnessy, supra, at 544; Ekiu v. United States, 142 U. S. 651, 660 (1892). And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case; “it is not within the" }, { "docid": "22371840", "title": "", "text": "the Secretary of State and the Attorney General. It was also provided that no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interests of the United States. Pursuant to the authority of this proclamation the Secretary of State and the Attorney General issued regulations governing the entry into and departure of persons from the United States during the national emergency. Subparagraphs (a) to (k) of § 175.53 of these regulations specified the classes of aliens whose entry into the United States was deemed prejudicial to the public interest. Subparagraph (b) of § 175.57 provided that the Attorney General might deny an alien a hearing before a board of inquiry in special cases where he determined that the alien was excludable under the regulations on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest. It was under this regulation § 175.57 (b) that petitioner was excluded by the Attorney General and denied a hearing. We are asked to pass upon the validity of this action. At the outset we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides. Nishimura Ekiu v. United States, 142 U. S. 651, 659; Fong Yue Ting v. United States, 149 U. S. 698, 711. Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power. But there is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign" }, { "docid": "22619711", "title": "", "text": "to private lands, but not dwellings “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . .” At the very least, this statute represents the considered judgment of Congress that proper enforcement of the immigration laws requires random searches of vehicles without warrant or probable cause within a reasonable distance of the international borders of the country. It is true that “[ujntil 1875 alien migration to the United States was unrestricted.” Kleindienst v. Mandel, 408 U. S. 753, 761 (1972). But the power of the National Government to exclude aliens from the country is undoubted and sweeping. “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power.” Chae Chan Ping v. United States, 130 U. S. 581, 603-604 (1889). “The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively ... is settled by our previous ad judications.” Lem Moon Sing v. United States, 158 U. S. 538, 547 (1895). See also Fong Yue Ting v. United States, 149 U. S. 698, 711 (1893); Yamataya v. Fisher, 189 U. S. 86, 97-99 (1903); United States ex rel. Turner v. Williams, 194 U. S. 279, 289-290 (1904); Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 335-336 (1909); United States ex rel. Volpe v. Smith, 289 U. S. 422, 425 (1933). Since 1875, Congress has given “almost continuous attention ... to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control . . . .” Kleindienst v. Mandel," } ]

[ { "docid": "22621179", "title": "", "text": "provided the confinement takes place pursuant to proper procedures and evidentiary standards. See Foucha, supra, at 80; Addington v. Texas, 441 U. S. 418, 426-427 (1979). It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty. Cf. id., at 426. The challenged Act unambiguously requires a finding of dangerousness either to one’s self or to others as a prerequisite to involuntary confinement. Commitment proceedings can be initiated only when a person “has been convicted of or charged with a sexually violent offense,” and “suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.” Kan. Stat. Ann. § 59-29a02(a) (1994). The statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not inca pacitated. As we have recognized, “[previous instances of violent behavior are an important indicator of future violent tendencies.” Heller v. Doe, 509 U. S. 312, 323 (1993); see also Schall v. Martin, 467 U. S. 253, 278 (1984) (explaining that “from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct”). A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” See, e. g., Heller, supra, at 314-315 (Kentucky statute permitting commitment of “mentally retarded” or “mentally ill” and dangerous individual); Allen v. Illinois, 478 U. S. 364, 366 (1986) (Illinois statute permitting commitment of “mentally ill” and dangerous individual); Minnesota ex rel. Pearson v. Probate Court of Ramsey Cty., 309 U. S. 270, 271-272 (1940) (Minnesota statute permitting commitment of dangerous individual with “psychopathic personality”). These added statutory requirements serve to limit involuntary civil confinement to" } ]

[ { "docid": "22536824", "title": "", "text": "Id., at 751; see also Foucha, supra, at 81 (calling the pretrial detention statute in Salerno a “sharply focused scheme”). We have reviewed involuntary civil commitment statutes the same way. In Addington v. Texas, 441 U. S. 418 (1979), we held that a State could not civilly commit the mentally ill without showing by “clear and convincing evidence” that the person was dangerous to others, id., at 433. The elevated burden of proof was demanded because “[l]oss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior.” Id., at 427. The statutory deficiency was the same in Foucha, where we held that Louisiana’s civil commitment statute failed due process because the individual was denied an “adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community.” 504 U. S., at 81. See also id,.at 88 (opinion of O’Connor, J.) (civil commitment depends on a “necessary connection between the nature and purposes of confinement”). In addition to requiring a compelling reason for detention, we held that the class of persons affected must be narrow and, in pretrial-type lockup, the time must be no more than what is reasonably necessary before the merits can be resolved. In the case of the Bail Reform Act, we placed weight on the fact that the statute applied only to defendants suspected of “the most serious of crimes,” Salerno, supra, at 747; see also Foucha, supra, at 81, while the statute in Kansas v. Hendricks, 521 U. S. 346 (1997), likewise provided only for confinement of “a limited subclass of dangerous persons” who had committed “ ‘a sexually violent offense’ ” and who suffered from “ ‘a mental abnormality or personality disorder’ ” portending “ ‘predatory acts of sexual violence,’ ” id., at 357 (quoting Kan. Stat. Ann. §59-29a02(a) (1994)). Salerno relied on the restriction of detention “by the stringent time limitations of the Speedy Trial Act,” 481 U. S., at 747, whereas in Foucha, it was a fault that the statute did not impose any" }, { "docid": "22916743", "title": "", "text": "interests. Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (noting that statutory requirements that couple proof of dangerousness with proof of a mental illness or abnormality “serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control”); id. at 357, 117 S.Ct. 2072 (noting that civil commitment statutes may “provide! ] for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety ... provided the confinement takes place pursuant to proper procedures and evidentiary standards”) (internal citations omitted); see also Kansas v. Crane, 534 U.S. 407, 414, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (noting that “our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior”). [This] lack of control [or] inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. Crane, 534 U.S. at 413, 122 S.Ct. 867 (internal quotation marks omitted). “Whether [an] individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” Addington, 441 U.S. at 429, 99 S.Ct. 1804; see also Comstock, 627 F.3d at 521. C. Three clinical and forensic psychologists evaluated Hall and testified at his evidentiary hearing, two on behalf of the government and one on behalf of Hall. Hall also testified on his own behalf. There were no objections raised to the qualifications of the expert witnesses, and" }, { "docid": "23366629", "title": "", "text": "1804, 60 L.Ed.2d 323 (1979) (applying Mathews), we must deny Hubbart’s due process claim unless the state court unreasonably applied Mathews to the facts of Hubbart’s case. See Williams, 529 U.S. at 413, 120 S.Ct. 1495. The California appellate court concluded that “an SVPA commitment resulting from unlawful custody [does not] violate due process where, as here, the unlawful custody was the result of a good faith error and where, as here, the SVP is provided with numerous procedural safeguards.” Hubbart, 88 Cal.App.4th at 1230, 106 Cal.Rptr.2d 490. SVPA safeguards include requirements that accused sexually violent predators receive diagnoses from two psychiatrists or psychologists, assistance of counsel, and trial by jury on proof beyond a reasonable doubt. See Cal. Welf. & InstCode §§ 6602, 6603. As the state court concluded, “[a] person in unlawful custody who is alleged to be an SVP still has all of the procedural safeguards that the SVPA provides in order to decrease the risk of an erroneous liberty deprivation.” Hubbart, 88 Cal.App.4th at 1230, 106 Cal.Rptr.2d 490. In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the Supreme Court upheld against a due process challenge Kansas’ civil commitment statute, which is similar in relevant respects to the SVPA. The Court held that state civil commitment schemes must at minimum follow “proper procedures and evidentiary standards” and require proof of dangerousness plus proof of an additional factor, such as mental disorder. See id. at 357-58, 117 S.Ct. 2072. These elements must be established by clear and convincing evidence. See Addington, 441 U.S. at 433, 99 S.Ct. 1804. The California Court of Appeal held that the SVPA satisfies these due process requirements, even accounting for its interpretation of the SVPA’s “in custody” prerequisite. Hubbart, 88 Cal.App.4th at 1230, 106 Cal.Rptr.2d 490 (citing, among others, Cal. Welf. & Inst.Code §§ 6601, 6603). Because we find no Supreme Court authority to the contrary, we reject Hub-bart’s due process claims. C Hubbart also casts his detention under parole revocation regulation § 2616(a)(7) as a violation of the Equal Protection Clause. He argues that the state" }, { "docid": "22916742", "title": "", "text": "Thus, the district court found that the government established the first element of sexual dangerousness by clear and convincing evidence. See 18 U.S.C. § 4247(a)(5). There is also no dispute that Hall presently “suffers from a serious mental illness, abnormality, or disorder.” 18 U.S.C. § 4247(a)(6). Hall was diagnosed by several clinical psychologists as suffering from pedophilia and antisocial personality disorder, and the district court found that the government also established this second element by clear and convincing evidence. Hall does not challenge these findings on appeal. The crux of this appeal, therefore, is whether the district court erred in finding that the government failed to prove, by clear and convincing evidence, that Hall, as a result of these disorders, “would have serious difficulty in refraining from ... child molestation if released” from custody. 18 U.S.C. § 4247(a)(6). As noted by the district court, the “serious difficulty” prong of § 4248’s certification proceeding refers to the degree of the person’s “volitional impairment,” which impacts the person’s ability to refrain from acting upon his deviant sexual interests. Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (noting that statutory requirements that couple proof of dangerousness with proof of a mental illness or abnormality “serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control”); id. at 357, 117 S.Ct. 2072 (noting that civil commitment statutes may “provide! ] for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety ... provided the confinement takes place pursuant to proper procedures and evidentiary standards”) (internal citations omitted); see also Kansas v. Crane, 534 U.S. 407, 414, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (noting that “our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior”). [This] lack of control [or] inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof" }, { "docid": "23366632", "title": "", "text": "106 Cal.Rptr.2d 490 (quotation marks and citations omitted). Although we do not ordinarily apply strict scrutiny review to civil commitment schemes, see United States v. Sahhar, 917 F.2d 1197, 1201 n. 4 (9th Cir.1990) (citing cases), we need not disturb the California court’s heightened analysis here. We note that the Supreme Court has not squarely addressed the appropriate level of scrutiny, see id. at 1201, and hold that the California appellate court’s conclusions here do not conflict with controlling authority. The California appellate court’s determination that the SVPA is narrowly tailored to further the state’s compelling interest in identifying and containing sexually violent prisoners before they are released from custody is certainly consistent with Justice Kennedy’s observation in Hendricks that “the power of the State to confine persons who, by reason of a mental disease or mental abnormality, constitute a real, continuing and serious danger to society is well established.” 521 U.S. at 372, 117 S.Ct. 2072 (Kennedy, J., concurring); see also Addington, 441 U.S. at 426, 99 S.Ct. 1804 (“[T]he state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.”). In addition, Hub-bart’s argument that the state has arbitrarily confined him in violation of equal protection essentially duplicates his unavailing due process claim and fails for the same reasons. See Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (citing Jones v. United States, 463 U.S. 354, 362 n. 10, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983)). D Finally, Hubbart claims that the SVPA violates equal protection law established in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), because it applies a broader definition of “mental disorder” than California’s Mentally Disordered Offender (“MDO”) statute, which provides for involuntary commitment and treatment of potential state parolees. Compare Cal. Welf. & InstCode § 6600(c) (defining “mental disorder” under the SVPA), with Cal.Penal Code § 2962(a) (defining “severe mental disorder” under the MDO). In order" }, { "docid": "5718199", "title": "", "text": "by antipsychotic drugs. See Project Release v. Prevost, 551 F.Supp. 1298, 1309 (E.D.N.Y.1982), aff'd, 722 F.2d 960 (2d Cir.1983). The Supreme Court’s decision in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), is most pertinent to the present case because it involved the treatment of an allegedly mentally unstable prisoner. There the Court recognized that [a]mong the historic liberties’ protected by the Due Process Clause is the ‘right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.’ ” Id. at 492, 100 S.Ct. at 1263 (quoting Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)). See also Romeo, 457 U.S. at 316, 102 S.Ct. at 2458; Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957). The Court held in part that “[cjompelled treatment in the form of mandatory behavior modification programs” is a proper factor to be considered in determining whether a prisoner’s liberty interest in personal security has been infringed. Vitek, 445 U.S. at 492, 100 S.Ct. at 1263. The Court concluded: “A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. ” Id. at 493-94, 100 S.Ct. at 1263-64 (emphasis added). The required due process protections included notice to the prisoner of the proposed action, a hearing, and an independent decision maker. Recognizing that a medical question was involved, the Court nevertheless said: “The medical nature of the inquiry, however, does not justify dispensing with due process requirements. It is precisely ‘[t]he subtleties and nuances of psychiatric diagnoses’ that justify the requirement of adversary hearings.” Id. at 495, 100 S.Ct. at 1264 (quoting Addington v. Texas, 441 U.S. 418, 430, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979)). Bee also contends that this case raises First Amendment concerns, and we agree. The First Amendment protects the" }, { "docid": "10537907", "title": "", "text": "facts, we give some deference to the fact-finder. Id. at 89; United States v. Carta, 592 F.3d 34, 39 (1st Cir.2010). Moreover, under our clear error review, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, [we] may not reverse it,” even if we would have weighed the evidence differently had we been the trier of fact. Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). B. The Adam Walsh Act We begin with a brief examination of the purpose of the Adam Walsh Act. The. Act was enacted in 2006 “[t]o protect children from sexual exploitation and violent crime.” Pub.L. No. 109-248, 120 Stat. 587 (2006). To further this goal, the Act amends and supplements existing civil commitment provisions to allow the federal government to seek court-ordered civil commitment of certain sexually dangerous persons in custody. See id. § 302 (codified at 18 U.S.C. §§ 4241, 4247, 4248). The Act vests the Attorney General, any person authorized by the Attorney General, or the Director of the Bureau of Prisons with the power to certify that an individual in custody is a “sexually dangerous person.” Id. § 4248(a). This certification is then transferred to the district court which must order a hearing to determine whether the person is a “sexually dangerous person.” Id. At this hearing, the government bears the burden of demonstrating by clear and convincing evidence that the inmate is in fact a “sexually dangerous person,” by showing that the individual: 1) has “engaged or attempted to engage in sexually violent conduct or child molestation,” 2) “suffers from a serious mental illness, abnormality, or disorder,” and 3) as a result of this disorder he “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” Id. §§ 4247(a)(5)-(6), 4248(d). The Supreme Court has noted that the clear and convincing evidence standard is an “intermediate standard” somewhere “between a preponderance of the evidence and proof beyond a reasonable doubt,” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804," }, { "docid": "17293312", "title": "", "text": "Wisconsin Court of Appeals did not, as the lower court had, rest its decision on Martin’s failure to allege any changes in his condition. Rather, it decided to treat the lower court’s denial of Martin’s petition for discharge as a full redetermination on the merits of all the issues that he raised in the petition. In this respect, Martin’s case is exceptional because, despite what the Wisconsin Court of Appeals did in this case, Wisconsin’s civil commitment scheme for sexually violent persons does not require an annual reevaluation by the state court of the original grounds of commitment. Instead, it presumes that the original judgment continues to justify confinement and asks whether anything has changed that should cause the court to reevaluate the confinement. Wis. Stat. § 980.09(1). And while Foucha, 504 U.S. at 77, 112 S.Ct. at 1784, prohibits Wisconsin from confining a person civilly committed unless it has “clear and convincing” evidence, neither Foucha nor subsequent precedent call Wisconsin’s procedures into constitutional doubt or require the State to reexamine its initial justifications for confinement on some periodic basis. An examination of Wisconsin law regarding petitions for discharge, which Martin is challenging in his habeas petition, verifies that in many cases the state court will not consider the evidence originally justifying confinement. The initial burden lies with the petitioner, not the State. The petitioner must allege facts in his petition that would allow a court or jury to conclude that his condition has changed since the date of initial commitment. Wis. Stat. § 980.09(1); see also In re Commitment of Kruse, 296 Wis.2d 130, 150, 722 N.W.2d 742, 752 (2006). If the petitioner meets this pleading burden, the court will hold a hearing to determine whether a jury could conclude that the petitioner is no longer a sexually violent person. Wis. Stat. § 980.09(2). It is only after the petitioner meets his burden that the State must demonstrate by clear and convincing evidence that the petitioner’s confinement remains justified. Id. § 980.09(3). Thus, given Wisconsin’s decision to revisit its initial justifications for confining Martin in response to his 2005" }, { "docid": "22734318", "title": "", "text": "reject the contrary conclusion of the Court of Appeals, implicit in its decision to deny leave to appeal. A. One of petitioner’s principal arguments is that commitment for compulsory treatment under the Sex Crimes Act, at least after the expiration of the initial commitment in lieu of sentence, is essentially equivalent to commitment for compulsory treatment under Wisconsin’s Mental Health Act, Wis. Stat. Ann., c. 51 (1957); that a person committed under the Mental Health Act has a statutory right to have a jury determine whether he meets the standards for commitment, Wis. Stat. Ann. §51.03; and that petitioner’s commitment under the Sex Crimes Act without such a jury determination deprived him of equal protection of the laws. In Baxstrom, substantially the same argument was advanced by a convicted prisoner who was committed under New York law for compulsory treatment, without a jury trial, at the expiration of his penal sentence. This Court held that the State, having made a jury determination generally available to persons subject to commitment for compulsory treatment, could not, consistent with the Equal Protection Clause, arbitrarily withhold it from a few. 383 U. S., at 110-112. The Court recognized that the prisoner’s criminal record might be a relevant factor in evaluating his mental condition, and in determining the type of care and treatment appropriate for his condition; it could not, however, justify depriving him of a jury determination on the basic question whether he was mentally ill and an appropriate subject for some kind of compulsory treatment. Since 1880, Wisconsin has relied on a jury to decide whether to confine a person for compulsory psychiatric treatment. Like most, if not all, other States with similar legislation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally" }, { "docid": "11164025", "title": "", "text": "our holding in Brown. In Brown, we stated: When preserved, meritorious claims of ineffective assistance can excuse default. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A constitutional right to effective assistance must be the predicate to any such claim. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Mr. Brown provides no authority establishing a constitutional right to appellate counsel to challenge a civil commitment, [emphasis added] Where, as here, the right to counsel is a creation of state statute only, see Wis. Stat. § 980.03(2)(a), it follows that denial of that right does not establish the necessary cause to excuse the default of any underlying claims. Id. Our holding in Brown was not a determination of whether such a constitutional right could ever exist, but rather a recognition that Brown had failed to provide any argument for such a constitutional right. Examination of the briefs in the Brown appeal confirms this, in that the parties presented no argument whatsoever that there was a constitutional right to appellate counsel. We addressed the claim in the context of a right to counsel based on a state statute, Wis. Stat. § 980.03(2)(a), and our holding in Brown was that such a right must be grounded in the Constitution in order for ineffective assistance to constitute cause for procedural default. Brown, 599 F.3d at 609. We were never presented with the substantive argument as to whether a constitutional right existed, and therefore presented no opinion on that matter. In fact, our decision in Brown presumably would have been more expansive if we were actually addressing the substantive issue of whether indefinite civil confinement warrants the same type of access to appellate counsel as is required in appeals involving criminal confinement. See e.g. Jenkins v. Director of Virginia Center for Behavioral Rehabilitation, 271 Va. 4, 624 S.E.2d 453, 460 (2006) and cases cited therein (analyzing due process law and concluding that “in view of the substantial liberty interest at stake in an involuntary civil commitment based upon Virginia’s Sexually Violent Predators" }, { "docid": "16414201", "title": "", "text": "in the civil, as opposed to criminal (i.e., punitive), context. See generally Mary M. Cheh, Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1343-44 (1991) (\"The Court has approved such regulatory measures as pretrial detention, detention during wartime and insurrection, detention of resident aliens pending deportation proceedings, post-arrest detention of juveniles, detention of criminal defendants who are incompetent to stand trial, and the involuntary commitment of mentally ill persons who are a danger to themselves or to others.” (footnotes omitted)); see also id. at 1331 (noting civil and criminal trials “follow different rules of procedure, burdens of proof, and rules of discovery”). In fact, this case fairly can be characterized as a form of \"civil exclusion,” and the Supreme Court has held that the Constitution affords latitude to governments to commit dangerous persons, such as sexual predators, in order to protect the public. See Hendricks, 521 U.S. at 357, 117 S.Ct. 2072 (upholding Kansas’ civil commitment statute which permitted detention when a person \"has been convicted of or charged with a sexually violent offense,” and \"suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence” (quoting Kan. Stat. Ann. § 59-29a02(a) (1994))); see also Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (elaborating on Hendriclcs). The fact that the City’s actions are understood appropriately not as \"punishment,” but as a civil measure designed to protect its youth, renders irrelevant the argument that Mr. Doe's actions were not of sufficient gravity to justify punishment. The City was not bound to wait until Mr. Doe again committed the crime of child molestation or attempted child molestation in order to act. It had the power to address Mr. Doe’s actions outside the criminal law context and did exactly that. See Smith, 538 U.S. at 93, 123 S.Ct. 1140 (\"[A]n imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective and has been historically so regarded.”" }, { "docid": "10537908", "title": "", "text": "the Attorney General, or the Director of the Bureau of Prisons with the power to certify that an individual in custody is a “sexually dangerous person.” Id. § 4248(a). This certification is then transferred to the district court which must order a hearing to determine whether the person is a “sexually dangerous person.” Id. At this hearing, the government bears the burden of demonstrating by clear and convincing evidence that the inmate is in fact a “sexually dangerous person,” by showing that the individual: 1) has “engaged or attempted to engage in sexually violent conduct or child molestation,” 2) “suffers from a serious mental illness, abnormality, or disorder,” and 3) as a result of this disorder he “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” Id. §§ 4247(a)(5)-(6), 4248(d). The Supreme Court has noted that the clear and convincing evidence standard is an “intermediate standard” somewhere “between a preponderance of the evidence and proof beyond a reasonable doubt,” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), requiring proof that the government’s assertions are “highly probable,” Colorado v. New Mexico, 467 U.S. 310, 316-17, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). C. Sexual Dangerousness On appeal, Volungus does not contest the district court’s finding that the government presented clear and convincing evidence to establish that he has attempted to engage in child molestation and he suffers from a serious mental disorder, pedophilia. Instead his arguments focus on the third prong of the sexually dangerous test, namely the court’s conclusion that as result of his pedophilia, Volungus would “have serious difficulty in refraining from ... child molestation if released.” Volungus maintains that his commitment cannot rest only on his mental disorder and fantasies about having sex with children. He claims that he has demonstrated an ability to refrain from molesting children, that he is able to control his potential dangerousness, and that unlike other individuals confined under the Adam Walsh Act, he has not committed numerous “hands-on” offenses with children. As such, Volungus asserts that the district court erred" }, { "docid": "14318954", "title": "", "text": "inmate is dangerous. Under the state’s statutory release procedures, by contrast, an inmate who has been confined without the benefit of a hearing cannot secure release unless he carries the burden of proving that he is not dangerous. II In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Supreme Court held that the equal protection clause bars a state from committing a prisoner who is nearing the end of his term to a mental institution without affording him a hearing similar to the hearing necessary for involuntary civil commitment of the mentally ill. Later the Court recognized with apparent approval that the Baxstrom principle had been extended by lower courts to commitment following an insanity acquittal. See Jackson v. Indiana, 406 U.S. 715, 724, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Recently, in Addington v. Texas,—U.S.—, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court reaffirmed that involuntary commitment to a mental institution “constitutes a significant deprivation of liberty that requires due process protection.” 99 S.Ct. at 1809. Addington dealt with the standard of proof required for civil commitment, and in doing so, it implicitly placed on the state the burden of proving that the person to be committed has a propensity to harm himself or others. These decisions, we believe, establish that Maryland’s procedures for retaining custody of persons who have been acquitted of criminal charges by reason of insanity are constitutionally inadequate. Pointing out that Maryland provides counsel to persons civilly committed, the district court correctly ruled that the commitment without counsel and without a hearing of persons acquitted of criminal charges by reason of insanity offends both the equal protection and due process clauses of the fourteenth amendment. The state’s procedures for release do not remedy these constitutional defects because they shift to each inmate the burden of proving his fitness for release. While it is proper to place this burden on inmates committed in accordance with constitutionally adequate procedures, it is fundamentally unfair to require inmates whom the state has never proven committable to bear the burden of proving their" }, { "docid": "11164026", "title": "", "text": "was a constitutional right to appellate counsel. We addressed the claim in the context of a right to counsel based on a state statute, Wis. Stat. § 980.03(2)(a), and our holding in Brown was that such a right must be grounded in the Constitution in order for ineffective assistance to constitute cause for procedural default. Brown, 599 F.3d at 609. We were never presented with the substantive argument as to whether a constitutional right existed, and therefore presented no opinion on that matter. In fact, our decision in Brown presumably would have been more expansive if we were actually addressing the substantive issue of whether indefinite civil confinement warrants the same type of access to appellate counsel as is required in appeals involving criminal confinement. See e.g. Jenkins v. Director of Virginia Center for Behavioral Rehabilitation, 271 Va. 4, 624 S.E.2d 453, 460 (2006) and cases cited therein (analyzing due process law and concluding that “in view of the substantial liberty interest at stake in an involuntary civil commitment based upon Virginia’s Sexually Violent Predators Act, the due process protections embodied in the federal and Virginia Constitutions mandate that the subject of the involuntary civil commitment process has the right to counsel at all significant stages of the judicial proceedings, including the appellate process.”) The confusion in the courts as to our holding may well have stemmed from our footnote in Brown, in which we stated: “Because we do not recognize a constitutional right to counsel in these circumstances, we cannot accept the cause-and-prejudice analysis urged by Mr. Brown, in which ineffective assistance provides the requisite cause.” Id. at 609 n. 7. Taken in isolation, that could be misread as a determination that there is no right to appellate counsel for proceedings under the Sexually Violent Persons Act, but given the context that a constitutional basis was never argued, the footnote is properly understood as merely a statement that no such right has been urged by Brown and therefore we cannot recognize such a right in this particular case. Brown, then, does not express an opinion at all on the" }, { "docid": "20245309", "title": "", "text": "the record “produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established[.]” United States v. Heyer, 740 F.3d 284, 292, No. 12-7472, 2014 WL 185584, at *6 (4th Cir. Jan. 17, 2014) (quoting Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir.2001)); Springer, 715 F.3d at 538. In applying the first two commitment criteria under the Walsh Act, the question is whether the Government has established with clear and convincing evidence that the respondent acted or acts in a certain manner. The third element, however, is more complicated, in that it requires the court to issue a predictive judgment: has the Government met its burden by presenting clear and convincing evidence that, in the uncertain future, the respondent will have “serious difficulty in refraining from sexually violent conduct or child molestation”? 18 U.S.C. § 4247(a)(6). We are mindful that the Supreme Court has explained that such an inquiry “will not be demonstrable with mathematical precision.” Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Instead, in order to find that the third criterion is satisfied, the court must look for proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. Id. In other words, the Government must demonstrate that the serious illness, as it has manifested in the particular respondent, has so significantly diminished his volitional capacity such that he is distinguishable from the ordinary “dangerous but typical recidivist.” Id.; see also Wooden, 693 F.3d at 460 (framing the third criterion as “the extent to which the inmate is controlled by the illness”). We now assess the instant record with this exacting standard in mind. As to the third criterion," }, { "docid": "19339541", "title": "", "text": "269 F.3d 439, 450 (4th Cir.2001) (internal quotation marks, citations, and alterations omitted). “[T]he ‘clear and convincing’ standard of proof is an ‘intermediate standard’ that falls between a ‘mere preponderance of the evidence’ and ‘beyond a reasonable doubt.’ ” Hall, 664 F.3d at 461 (quoting Addington, 441 U.S. at 423-24, 99 S.Ct. 1804). Perez does not dispute that the government established the first two elements by clear and convincing evidence— (1) that he previously engaged or attempted to engage in child molestation and (2) that he suffers from a serious mental illness, abnormality, or disorder, ie., pedophilia. Perez challenges only the district court’s finding that as a result of his pedophilia, “he would have serious difficulty in refraining from ... child molestation if released.” 18 U.S.C. § 4247(a)(6). “[T]he serious difficulty prong of § 4248’s certification proceeding refers to the degree of the person’s volitional impairment, which impacts the person’s ability to refrain from acting upon his deviant sexual interests.” Hall, 664 F.3d at 463 (internal quotation marks omitted). The “ ‘lack of control or inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior.’ ” Id. (quoting Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)) (alteration omitted). Perez contends that the government’s evidence rested almost entirely on his criminal offense history and failed to adequately account for Perez’s current level of volitional impairment. Perez claims, moreover, that any expert opinion about his present mental state and capacity for volitional control rests on speculation, especially, he points out, because none of the experts who testified at the commitment hearing interviewed him. First, we reject Perez’s suggestion that the district court’s substantial consideration of his criminal offense history was erroneous or improper. Although “[t]he nature of [Perez’s] prior crimes may well be a historical factor, ... it is by no means a stale or irrelevant one. When the question is whether an inmate suffering from pedophilia will have serious difficulty refraining from re-offending if released, consideration of the" }, { "docid": "19990323", "title": "", "text": "from total confinement,” was narrowly tailored to the compelling interest of community safety. It reasoned: If the State does not initiate civil commitment proceedings against sexually violent predators such as Smith, it creates the serious risk that such predators will not receive the necessary treatment and will return to Washington and commit further crimes against Washington residents. The requirement of narrow tailoring does not compel this court to accept Smith’s interpretation of “about to be released from total confinement.” In re Smith, 122 P.3d at 741. We adopt the state court’s construction of its statute, see Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005), and consider whether the statute, so construed, violates Smith’s federal due process rights. Freedom from physical restraint is at the core of the liberty protected by the Due Process Clause, but states may nonetheless provide for civil detainment of those who are mentally ill and pose a danger to public safety. Kansas v. Hendricks, 521 U.S. 346, 356-58, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Addington v. Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Explicit find ings of current dangerousness and mental illness are necessary to meet the requirement that the statute be narrowly tailored. Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). These conditions must be proven by clear and convincing evidence. Addington, 441 U.S. at 432-33, 99 S.Ct. 1804. Though these requirements are constitutional in nature, the Supreme Court recognizes that the standards for mental illness and dangerousness will be defined by state law. See Hendricks, 521 U.S. at 357-58, 117 S.Ct. 2072(discussing standard for dangerousness as set forth in Kansas’s Sexually Violent Predator Act); Foucha, 504 U.S. at 75, 112 S.Ct. 1780 (referring to mental illness and dangerousness findings as “statutory preconditions” to civil commitment); id. at 82, 112 S.Ct. 1780 (discussing the evidentiary burden imposed by the Louisiana statute). Washington’s standards for mental illness and dangerousness have been deemed to satisfy due process requirements. See Seling v. Young, 531 U.S. 250, 258-64, 121 S.Ct. 727," }, { "docid": "22086122", "title": "", "text": "permissibly be accomplished without due process of law, see id. at 492, 100 S.Ct. at 1263; O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring); Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir.1983) (“Project Release ”). As a substantive matter, due process does not permit the involuntary.hospitalization of a person who is not a danger either to herself or to others: [ajssuming that th[e] term [“mental illness”] can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous tp no one and can live safely in freedom. O’Connor v. Donaldson, 422 U.S. at 575, 95 S.Ct. at 2493 (unanimous opinion); see also Vitek v. Jones, 445 U.S. at 491-94, 100 S.Ct. at 1263-64 (a prisoner, whose liberty is already curtailed, may not be transferred to a mental institution for treatment of a mental disease or defect without procedural due process); Foucha v. Louisiana, 504 U.S. 71, 79, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437 (1992) (substantive “[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.”). “Erroneous commit ments, of course, implicate the individual’s interest in liberty,” Goetz v. Crosson, 967 F.2d at 33, and as a procedural matter, due process does not permit continuation of a challenged involuntary civil commitment without a hearing, at which the substantive predicates must be established by clear and convincing evidence, see Addington v. Texas, 441 U.S. 418, 423-31, 99 S.Ct. 1804, 1807-12, 60 L.Ed.2d 323 (1979); see also Goetz v. Crosson, 967 F.2d at 31 (same); Warren v. Harvey, 632 F.2d 926, 930 (2d Cir.) (same), cert. denied, 449 U.S. 902, 101 S.Ct. 273, 66 L.Ed.2d 133 (1980). Though we agree with the district court that due process does not require a guarantee that a physician’s assessment of the likelihood of serious harm be correct, and we do not suggest that the clear-and-convincing standard of proof applies to a" }, { "docid": "19990324", "title": "", "text": "Addington v. Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Explicit find ings of current dangerousness and mental illness are necessary to meet the requirement that the statute be narrowly tailored. Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). These conditions must be proven by clear and convincing evidence. Addington, 441 U.S. at 432-33, 99 S.Ct. 1804. Though these requirements are constitutional in nature, the Supreme Court recognizes that the standards for mental illness and dangerousness will be defined by state law. See Hendricks, 521 U.S. at 357-58, 117 S.Ct. 2072(discussing standard for dangerousness as set forth in Kansas’s Sexually Violent Predator Act); Foucha, 504 U.S. at 75, 112 S.Ct. 1780 (referring to mental illness and dangerousness findings as “statutory preconditions” to civil commitment); id. at 82, 112 S.Ct. 1780 (discussing the evidentiary burden imposed by the Louisiana statute). Washington’s standards for mental illness and dangerousness have been deemed to satisfy due process requirements. See Seling v. Young, 531 U.S. 250, 258-64, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). A federal habeas court therefore considers only whether a state court’s decision unreasonably applied the law or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-(2); see also Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The Washington Court of Appeals reasonably assessed the law and facts according to the standards defined in RCW 71.09. The court explained that Smith remained dangerous because he might go to Alaska and serve his time, but could readily return to Washington and re-offend. This prediction is entirely reasonable. Smith has already committed one crime in Washington while on Alaska parole. Alaskan authorities obtained the warrant because Smith had disappeared while on parole, and Smith’s parole supervisor labeled him “likely to flee.” His argument that the Alaska detainer renders him harmless to the Washington community might be persuasive if he were facing a life sentence. However, assuming his parole is revoked, Smith will serve only 215 days in prison in Alaska before being released to" }, { "docid": "14095070", "title": "", "text": "or irrational.” Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citing Cleburne, 473 U.S. at 446, 105 S.Ct. 3249). As should be clear from the foregoing substantive due process analysis, plaintiff is unable to meet his heavy burden to show that the transportation policy is arbitrary or irrational. Plaintiff argues that it is irrational for defendants to rely on the purported “dangerousness” of Chapter 980 patients as justification for the policy because Chapter 980 patients are not the only involuntarily committed individuals to have been determined legally to be dangerous: Chapter 51 also requires the state to show that the individual is dangerous to himself or others before he may be committed involuntarily. See Wis. Stat. § 51.20(l)(a)2. However, even the Supreme Court has acknowledged that the state may distinguish between different types of involuntarily committed persons. See Jones v. United States, 463 U.S. 354, 366-68, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (insanity acquittees may be treated differently in some respects from persons subject to civil commitment); Baxstrom, 383 U.S. at 111, 86 S.Ct. 760 (“[classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given”). There are sound reasons for administrators at the Wisconsin Resource Center to have concluded that persons committed as sexually violent present a greater escape risk than persons in the larger, more inclusive class of patients defined under Chapter 51. As noted previously, persons committed under Chapter 980 have been proven beyond a reasonable doubt to have a past history of sexually violent conduct and to be substan tially likely to reoffend if released, elements that the state need not prove with respect to other civil committees. Moreover, the term of a Chapter 980 commitment is indefinite. These factors provide a rational basis upon which the state may rely in treating Chapter 980 patients differently from other civilly committed patients when it transports them to and from the facility. The transportation policy does not violate plaintiffs right" } ]

[ { "docid": "11728368", "title": "", "text": "defendants is not subject to the voluntary-involuntary rule. Accordingly, removal jurisdiction existed in this case upon the severance of Crockett’s claims against the nondiverse in-state health care defendants. III. Crockett has not challenged the district court’s disposition on the merits. Accordingly, because we conclude that the district court had subject matter jurisdiction, its judgment granting the motion for judgment on the pleadings, denying (as moot) the motion to remand, and dismissing all claims with prejudice, is AFFIRMED. . Although it reached the correct result, the district court should not have decided to bypass the jurisdictional question presented in the motion to remand and proceed directly to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the notion that a court can \"assume” jurisdiction for the purpose of deciding the merits, because such an approach \"carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers”). . See, e.g., Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir.1988) (“Fraudulent joinder is a well-established exception to the voluntary-involuntary rule.”). . Accord Smallwood v. III. Cent. R.R., 385 F.3d 568, 573 (5th Cir.2004) (en banc) (describing \"the test for fraudulent joinder” and quoting Travis, 326 F.3d at 646-47), cert. denied, - U.S. -, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005). . Section 1447(d) states that \"[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise” (adding an exception not relevant here). . Cf. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996). . Crockett v. R.J. Reynolds Tobacco Co., No. 03CV1391 (10th Dist. Ct., Galveston County, Tex., Aug. 18, 2004) (transcript of hearing on defendants’ motion to sever). . This conclusion finds support the text of § 1441(b), which does not refer to \"nonfraud-ulently joined” parties. Rather, it blocks removal only where \"properly joined” defendants are citizens of the state in which the action is brought." } ]

[ { "docid": "8284126", "title": "", "text": "Cir.2014). . See 28 U.S.C. § 1441(a). . See id. § 1441(b)(2). . Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc), cert. denied 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005) (internal quotation marks and citation omitted). . Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir.2007). . Smallwood, 385 F.3d at 573. . Id. (internal quotation marks and citation omitted). . Id. . Id. . Id. . Reece v. U.S. Bank Nat’l Ass'n, 762 F.3d 422, 424 (5th Cir.2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (U.S.2007)). This standard' is derived from Federal Rule of Civil Procedure 8. Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (\"The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ”). . 125 Fed.Appx. 533 (5th Cir.2005) (unpulished). . Id. at 537 (‘‘[W]e must determine whether what plaintiffs did plead was sufficient____ See Lovick v. Ritemoney Ltd., 378 F.3d 433, 438 (5th Cir.2004) (stating that, under Rule 8(a), a complaint suffices if it gives the defendant ‘fair \"notice of what the plaintiff’s claim is and the grounds upon which it rests’) (internal quotation marks omitted); Penley v. Westbrook, 146 S.W.3d 220, 232 (Tex.Ct.App.2004) ('Texas follows a 'fair notice’ pleading standard, which looks to whether the opposing party, can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant at trial.’)”). . Id. ■ . 509 Fed.Appx. 340 (5th Cir.2013) (unpublished). . 544 Fed.Appx. 535 (5th Cir.2013) (unpublished). . Id. at 538. . King v. Jarrett, No. A-15-CV-00491-LY-ML, 2015 WL 5794021, at *9 (W.D.Tex. Oct. 1, 2015); see Holmes v. Acceptance Cas. Ins. Co., 942 F.Supp.2d 637, 645 (E.D.Tex.2013) (\"Based on the court’s research, the United States Court of Appeals for the Fifth Circuit has not resolved in a published decision the issue of whether to apply" }, { "docid": "21441622", "title": "", "text": "therefore had no possibility of recovery against the Medical Defendants. Furthermore, the Louisiana courts have squarely held that a plaintiff must exhaust the medical, panel review process before filing suit; even if the plaintiff obtains an expert opinion after filing suit, the suit nevertheless remains premature and the court must dismiss the suit without prejudice. Thus, even though Flagg has now completed the medical review process, that does not cure his failure to exhaust before filing this suit. The state couid; still would have been required to dismiss Flagg’s claims against the Medical Defendants, so the Medical Defendants are improper defendants in this case. IV. In sum, the district court correctly concluded that Flagg improperly joined the Medical Defendants because Flagg did not exhaust his claims as required by statute against those parties. The district court therefore .properly dismissed the Medical Defendants from the case and exercised diversity jurisdiction over Flagg’s remaining claims against, the Manufacturing Defendants. We therefore affirm that portion of the district court’s order. Because the panel majority ordered the district court to remand this case to state court, the panel did not address the district court’s ruling on the merits of the Manufacturing Defendants’ Rule 12(b)(6) motion. We therefore return the case back to the panel to review the district court’s order dismissing Flagg’s claims against those defendants. AFFIRMED in part and RETURNED to the panel for further proceedings. . 28 U.S.C. § 1332(a)(1). . Id. § 1441(a)-(b). . E.g., Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . E.g., Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 185-86, 27 S.Ct. 184, 51 L.Ed. 430 (1907); Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-73 (5th Cir.2004) (en banc), cert. denied, 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005). . E.g., In re Transtexas Gas Corp., 303 F.3d 571, 576-77 (5th Cir.2002) (citing Scherbatskoy v. Halliburton Co., 125 F.3d 288, 290 (5th Cir.1997)). . E.g., Wecker, 204 U.S. at 185-86, 27 S.Ct. 184; Smallwood, 385 F.3d at 572-73. . Smallwood, 385 F.3d at 573 (quoting Travis v." }, { "docid": "23039170", "title": "", "text": "omitted)); Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566 (Tex.1990) (the duty of good'faith and fair dealing arises “from an obligation imposed in law as a result of a special rela tionship between the parties governed or created by a contract” (internal quotations omitted)); Coffman v. Scott Wetzel Servs., Inc., 908 S.W.2d 516, 516 (Tex.App.-Fort Worth 1995, no writ) (citing Natividad for the proposition that no duty of good faith and fair dealing is owed by an agent to the insured absent privity of contract). Once again, Griggs has not alleged that his relationship with Blum was “governed or created by” any contract, or that his relationship with Blum was otherwise imbued with special characteristics that would give rise to the “special relationship” required to impose a duty of good faith and fair dealing. See Cavallini, 44 F.3d at 261-62; Viles, 788 S.W.2d at 567. There is, therefore, no basis under Texas law for Griggs’ claim against Blum for breach of the duty of good faith and fair dealing. Griggs also maintains that he has alleged viable claims against Blum under article 21.21 § 16(a) of the Texas Insurance Code and § 17.50(a)(4) of the Texas Deceptive Trade Practices Act. Article 21.21 § 4 of the Texas Insurance Code provides an extensive list of acts or practices forbidden as unfair or deceptive in the business of insurance. Tex. Ins.Code Ann. art. 21.21 § 4 (Vernon Supp.1999). Section 17.46 of the Texas Deceptive Trade Practices Act provides an extensive list of acts or practices that are forbidden in all businesses as unfair or deceptive. Tex. Bus. & Com.Code Ann. § 17.46 (Vernon Supp.1999). Both the Texas Insurance Code and the Texas Deceptive Trade Practices Act permit a private cause of action against “any person” who commits one of the prohibited acts or practices. See Tex. Ins.Code Ann. article 21.21 § 16 (Vernon Supp.1999); Tex. Bus. & Com.Code Ann. § 17.50 (Vernon Supp.1999). Texas courts have recently recognized that the statutory language is broad enough to permit in the appropriate circumstances a cause of action against an insurance agent who engages" }, { "docid": "11010169", "title": "", "text": "section 4 of this Article or in rules or regulations lawfully adopted by the Board [now Texas Department of Insurance] under this article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance ... may maintain an action against the person or persons engaging in such acts or practices. Tex.Ins.Code Ann. art. 21.21 § 16(a) (Vernon Supp.1995). Appellants argue that because the doctors have sustained actual damage as a result of Aetna’s deselection in violation of the PPO rules, they are entitled to pursue injunctive and “other relief’ under Tex.Ins. Code Ann. art. 21.21 § 16(b) (Vernon Supp. 1996). Aetna’ responds that appellants have no private cause of action under Article 21.21 § 16(a) as a matter of law because (1) Texas law does not declare a violation of the PPO rules to constitute an unfair method of competition or an unfair or deceptive act or practice, (2) the doctors are not “persons” for purposes of Article 21.21 § 16(a), and (3) the doctors have not suffered any actual damages as a result of any conduct prohibited by Article 21.21 § 16(a). Although the language of § 16(a) provides a cause of action to “any person,” the right to sue under § 16(a) has been limited by Texas courts to persons in privity of contract with the insurer on an insurance policy or an intended beneficiary of an insurance policy. In re Burzynski, 989 F.2d 733, 740 (5th Cir.1993); Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739, 744 (Tex. App.—Corpus Christi. 1993, writ denied) (stating that “no authority exists to extend the meaning of the term ‘person,’ as found in art. 21.21, beyond one who was either an insured or an intended beneficiary of the policy”); CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 791 (Tex.App.—Texarkana 1992, writ denied); Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728, 731 (Tex.App.—Houston [14th Dist.] 1987, writ refd n.r.e.). The doctors are neither in privity of contract with Aetna on an insurance policy nor intended beneficiaries of an insurance policy. Therefore, the" }, { "docid": "8284139", "title": "", "text": "(5th Cir.2006) (relying on Smallwood for the improper-joinder analysis); Holder v. Abbott Labs., Inc., 444 F.3d 383, 387 (5th Cir.2006) (\"This court's decision in Smallwood ... resolv[ed] issues surrounding removal based on improper join-der----The Smallwood decision provides the procedural framework for deciding whether remand was required.” (footnote omitted)); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308-09 (5th Cir.2005) (“[W]e ... determine whether the magistrate judge’s improper join-der inquiry in this case comports with our recent en banc decision in Smallwood .... Here, it is undisputed that [the plaintiffs] can satisfy a Rule 12(b)(6)-type inquiry....”); Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 224 (5th Cir.2005) (\"Joinder is improper if 'there is no reason able basis.for the district court to predict that the plaintiff might be able to recover against an in-state defendant, so that a plaintiff must be able to survive a hypothetical Rule 12(b)(6) challenge to the claim to effect remand.” (quoting Smallwood, 385 F.3d at 573)); McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir.2005) (“We recognize that the district court proceeded without the benefit of Small-wood’s clarification of the improper joinder doctrine. Therefore we proceed to discuss these thorny issues in the context of the circumstances presented to the district court, yet with the illumination of Smallwood and subsequent case law construing it.”). And none of these published opinions appear to rely on or reference a state pleading standard. . Smallwood, 385 F.3d at 574 (noting that the Rule 12(b)(6)-type analysis requires \"a simple and quick exposure of the chances of the claim against the in-state defendant alleged to be improperly joined”). . Twombly, 550 U.S. at 570, 127 S.Ct. 1955. . See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (“The essential elements’ of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance. by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach.”). . See English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983)" }, { "docid": "14574785", "title": "", "text": "Id. (citing Edwards v. Lubbock Co., 33 S.W.2d 482, 484 (Tex.Civ.App.—Amarillo 1930, no writ)). Applying the above standards to the terms in question together with the facts averred in the underlying complaint, there is no doubt that the complaint accused IMC of engaging in unlawful advertising activity. Therefore, IMC has successfully shown that the allegations of the underlying complaint aver an “advertising injury.” F. Having concluded that the underlying complaint alleged an “advertising injury,” the Court now turns to the third prong of the prima facie test: whether IMC’s advertising activities were causally related to the underlying lawsuit’s trade dress infringement claims. In order to establish a duty to defend, IMC must prove that the alleged injury occurred in the course of IMC’s advertising ideas or activity. In the case of Sentry Ins. v. R.J. Weber Co., 2 F.3d 554 (5th Cir.1993), the Fifth Circuit, applying Texas law, recognized the requirement that the insured must establish a nexus between the claims in the underlying lawsuit and the insured’s advertising activity. In Weber, the insured sought coverage for copyright infringement under the advertising coverage section of its CGL policy. The court found that the claims were part of the enumerated offenses constituting an “advertising injury.” However, because the insured failed to show “any connection” between the underlying lawsuit’s claims and Weber’s advertising injury, the court found no basis for coverage. Id. at 557. In the instant ease, however, IMC has established that nexus which entitles it to a defense under the advertising injury section of the policy. Not only was misappropriation of trade dress alleged in the underlying complaint, the required nexus between the advertising activities and damages alleged by County Line also proved the necessary causal nexus. G. American Manufacturers also moves for summary judgment against IMC’s claims under article 21.21 of the Texas Insurance Code and under the Texas Deceptive Trade Practices — Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq. (Vernon 1998). However, because genuine issues of material fact exist regarding those causes of action, American Manufacturers’ Motion for Summary Judgment as to" }, { "docid": "21441623", "title": "", "text": "to remand this case to state court, the panel did not address the district court’s ruling on the merits of the Manufacturing Defendants’ Rule 12(b)(6) motion. We therefore return the case back to the panel to review the district court’s order dismissing Flagg’s claims against those defendants. AFFIRMED in part and RETURNED to the panel for further proceedings. . 28 U.S.C. § 1332(a)(1). . Id. § 1441(a)-(b). . E.g., Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . E.g., Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 185-86, 27 S.Ct. 184, 51 L.Ed. 430 (1907); Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-73 (5th Cir.2004) (en banc), cert. denied, 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005). . E.g., In re Transtexas Gas Corp., 303 F.3d 571, 576-77 (5th Cir.2002) (citing Scherbatskoy v. Halliburton Co., 125 F.3d 288, 290 (5th Cir.1997)). . E.g., Wecker, 204 U.S. at 185-86, 27 S.Ct. 184; Smallwood, 385 F.3d at 572-73. . Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.2003)). A federal court may also find improper join-der where the plaintiff has committed \"actual fraud in the pleading of jurisdictional facts.” Id. (quoting Travis, 326 F.3d at 646-47). This case does not implicate that aspect of the improper joinder doctrine. . Id. The Smallwood standard is consistent with longstanding Supreme Court precedent. See Wecker, 204 U.S. at 183-86, 27 S.Ct. 184. . Smallwood, 385 F.3d at 574. . Id. at 573 (citing McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 334 (5th Cir.2004); Parks v. New York Times, Co., 308 F.2d 474, 478 (5th Cir.1962)). . Id. (citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 389 n. 10 (5th Cir.2000)). Conducting a summary inquiry is also consistent with longstanding Supreme Court precedent. See Wecker, 204 U.S. at 183-86, 27 S.Ct. 184 (holding that the district court did not err by considering affidavit testimony when determining whether the plaintiff improperly joined a non-diverse defendant). . Smallwood, 385 F.3d at 573-74 (citing Travis, 326 F.3d at 648-49)." }, { "docid": "22192411", "title": "", "text": ". Id. § 1144(b)(2)(A). . 538 U.S. at 339, 123 S.Ct. 1471. Under the McCarran-Ferguson factors, the Court considered whether (1) the practice had the effect of transferring or spreading a policyholder's risk; (2) the practice is an integral part of the policy relationship between the insured and the insurer; and (3) whether the practice is limited to entities within the insurance industry. See id. . Id. at 341-42, 123 S.Ct. 1471. . Sharpless, 364 F.3d at 640. . Hogan v. Kraft Foods, 969 F.2d 142, 144-45 (5th Cir.1992) (and cases cited therein). . McNeil v. Time Ins. Co., 205 F.3d 179, 191-92 (5th Cir.2000). . Hogan, 969 F.2d at 144-45 (and cases cited therein). . See Miller, 538 U.S. at 334, 123 S.Ct. 1471 (\"[L]aws of general application that have some bearing on insurers do not qualify.\"). . 536 U.S. 355, 365-66, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1999)). . Id. at 366, 122 S.Ct. 2151. . 364 F.3d at 640. . Id. at 640 n. 4 (emphasis added). . Id. at 640 (emphasis added). . 538 U.S. at 342, 123 S.Ct. 1471. . 538 U.S. at 338-39, 123 S.Ct. 1471. . Barber v. Unum Life Ins. Co. of Am., 383 F.3d 134, 143 (3d Cir.2004). . See id. at 143; see also Pilot Life, 481 U.S. at 49-51, 107 S.Ct. 1549 (holding that \"the common law of bad faith does not define the terms of the relationship between the insurer and the insured; it declares only that, whatever terms have been agreed upon in the insurance contract may in certain circumstances allow the policyholder to recover punitive damages”). . See, e.g., Tex. Ins. Code § 21.21(16)(b)(l) (providing treble damages for violations of article 21.21); Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 9 (Tex.1991) (noting that treble damages under article 21.21 are punitive in nature). Article 21.55 also provides a statutory penalty of 18% interest for an insurance company’s failure to comply with its provision. See Evergreen Nat’l Indem." }, { "docid": "8284138", "title": "", "text": "242, 249 (5th Cir.2011) (relying on Smallwood for the improper-joinder analysis); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 385 (5th Cir.2009) (same); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669-70 (5th Cir.2007) (same); Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 283 (5th Cir.2007) (\"[Ijnformed by our en banc holding in Smallwood ..., we conclude that joinder was proper in this case.” (footnote omitted)); Rico v. Flores, 481 F.3d 234, 239 (5th Cir.2007) (\"The test established by our circuit [in Smallwood] is ‘whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.’ ” (quoting Smallwood, 385 F.3d at 573)); Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir.2006) (\"[W]e have recognized [in Smallwood ] two tests for establishing improper join-der....”); Salazar v. Allstate Tex. Lloyd’s, Inc., 455 F.3d 571, 574 (5th Cir.2006) (relying on Smallwood for the improper-joinder analysis); Holder v. Abbott Labs., Inc., 444 F.3d 383, 387 (5th Cir.2006) (\"This court's decision in Smallwood ... resolv[ed] issues surrounding removal based on improper join-der----The Smallwood decision provides the procedural framework for deciding whether remand was required.” (footnote omitted)); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308-09 (5th Cir.2005) (“[W]e ... determine whether the magistrate judge’s improper join-der inquiry in this case comports with our recent en banc decision in Smallwood .... Here, it is undisputed that [the plaintiffs] can satisfy a Rule 12(b)(6)-type inquiry....”); Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 224 (5th Cir.2005) (\"Joinder is improper if 'there is no reason able basis.for the district court to predict that the plaintiff might be able to recover against an in-state defendant, so that a plaintiff must be able to survive a hypothetical Rule 12(b)(6) challenge to the claim to effect remand.” (quoting Smallwood, 385 F.3d at 573)); McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir.2005) (“We recognize that the" }, { "docid": "23039171", "title": "", "text": "has alleged viable claims against Blum under article 21.21 § 16(a) of the Texas Insurance Code and § 17.50(a)(4) of the Texas Deceptive Trade Practices Act. Article 21.21 § 4 of the Texas Insurance Code provides an extensive list of acts or practices forbidden as unfair or deceptive in the business of insurance. Tex. Ins.Code Ann. art. 21.21 § 4 (Vernon Supp.1999). Section 17.46 of the Texas Deceptive Trade Practices Act provides an extensive list of acts or practices that are forbidden in all businesses as unfair or deceptive. Tex. Bus. & Com.Code Ann. § 17.46 (Vernon Supp.1999). Both the Texas Insurance Code and the Texas Deceptive Trade Practices Act permit a private cause of action against “any person” who commits one of the prohibited acts or practices. See Tex. Ins.Code Ann. article 21.21 § 16 (Vernon Supp.1999); Tex. Bus. & Com.Code Ann. § 17.50 (Vernon Supp.1999). Texas courts have recently recognized that the statutory language is broad enough to permit in the appropriate circumstances a cause of action against an insurance agent who engages in unfair or deceptive acts or practices. In the two most prominent cases, Liberty Mutual Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482 (Tex.1998) and State Farm Fire & Casualty Co. v. Gros, 818 S.W.2d 908 (Tex.App. — Austin 1991, no writ), Texas courts acknowledged that a sales agent may be individually liable when the agent misrepresents specific policy terms prior to a loss, and the insured’s reliance upon that misrepresentation actually causes the insured to incur damages. See Garrison, 966 S.W.2d 482 (agent misrepresented the amount of premium due under the policy); Gros, 818 S.W.2d 908 (agent misrepresented that damage to home from mudslide was covered under homeowner’s policy). Griggs argues that the mere possibility that such a claim can be stated requires the conclusion that he has stated a valid claim in this case. We disagree. While the burden of demonstrating fraudulent joinder is a heavy one, we have never held that a particular plaintiff might possibly establish liability by the mere hypothetical possibility that such an action could exist. To the" }, { "docid": "8284125", "title": "", "text": "jurisdiction-in Texas. IEVM has failed to show- that UEG had minimum contacts with-Texas stemming from the unwritten, ■ origirial agreement. Accordingly, we affirm the district court’s grant of UEG’s motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). III. Conclusion For the foregoing reasons, we AFFIRM the district court’s denial of.IEVM-’s motion to remand and the grant of UEG’s motion to dismiss for lack of jurisdiction, and REMAND to the district court with instructions to VACATE its grant of Mueller’s motion to dismiss for failure to state a claim. Because the court lacks subject matter jurisdiction over Mueller and personal jurisdiction over UEG, each of the claims must be dismissed without prejudice. . Int'l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 800 F.3d 143 (5th Cir.2015). . Int'l Energy Ventures Mgmt. LLC v. United Energy Grp., Ltd., No. 4:13-CV-2754, 2014 WL 3732821, at *3 (S.D.Tex. July 25, 2014). . Int’l Energy Ventures, 2014 WL 3732821, at *2. . Id. . Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 887 (5th Cir.2014). . See 28 U.S.C. § 1441(a). . See id. § 1441(b)(2). . Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc), cert. denied 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005) (internal quotation marks and citation omitted). . Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir.2007). . Smallwood, 385 F.3d at 573. . Id. (internal quotation marks and citation omitted). . Id. . Id. . Id. . Reece v. U.S. Bank Nat’l Ass'n, 762 F.3d 422, 424 (5th Cir.2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (U.S.2007)). This standard' is derived from Federal Rule of Civil Procedure 8. Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (\"The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ”). . 125 Fed.Appx. 533 (5th Cir.2005) (unpulished). ." }, { "docid": "8541734", "title": "", "text": "Ins. Co., 788 S.W.2d 136, 147 (Tex.App.—Dallas), writ denied per curiam, 802 S.W.2d 650 (1990). . Beaumont Rice Mill, Inc. v. Mid-American Indem. Ins. Co., 948 F.2d 950, 952 (5th Cir.1991) (citing Aranda). . Tex.Bus. & Com.Codc Ann. § 17.50(a)(1) & (4). . Tex.Rcv.Civ.Stat. art. 21.21-2(2)(b)(4) (Supp. 1993). . 28 Tex.Admin.Code § 21.3 (1992). . 754 S.W.2d 129 (Tex. 1988). . At least one Texas court has questioned this aspect of the Vail decision. W.H. McGee & Co., Inc. v. Schick, 792 S.W.2d 513 (Tex.App.—Eastland 1990), vacated pursuant to settlement, 843 S.W.2d 473 (Tex.1992). The court noted first that Vail’s discussion of the issue was merely obiter dictum and that the Insurance Code only adopts as unlawful, practices \"defined” in section 17.46 of the DTPA. According to the court, an unlisted violation is a priori undefined and thus this aspect of the Vail decision is dicta. We need not address the issue. . Under the advanced Vail logic, the violation would become actionable under the DTPA under section 17.50(a)(4) even though it would not directly be actionable under section 17.50(a)(1) because it constitutes a violation of the Insurance Code rather than a violation specified in the laundry list. The logic of this evades us. See Beaumont Rice Mill and Tex.Rev.Civ.Stat. art. 21.21-2(2)(c) (Supp. 1993). .The Texas Supreme Court frequently has explained that the \"DTPA does not represent a codification of the common law.” Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988) (quoting Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex. 1980)). The common practice of collectively referring to these claims as \"bad faith” claims is understandable in light of their complexity and common origin. We are wary, however, of the implicit assumption that the list of defined practices in Insurance Code article 21.21-2, the DTPA, and the common law are all coextensive. .After the close of the evidence the court instructed the jury that an unfair or deceptive trade practice under the DTPA involved: (1) Misrepresenting to the insured pertinent facts or policy provisions relating to the coverage at issue, or (2) failing to adopt and implement reasonable standards for" }, { "docid": "2031129", "title": "", "text": "to federal court if the federal court would possess original subject-matter jurisdiction. 8 U.S.C. § 1441(a), 28 U.S.C. § 1445. A case removed on the basis of diversity jurisdiction may remain in federal court despite the presence of non-diverse defendants if the removing de fendant shows that the non-diverse defendants were improperly joined. Salazar v. Allstate Texas Lloyd’s, Inc., 455 F.3d 571, 574 (5th Cir.2006). Removal jurisdiction raises federalism issues, so removal statutes are strictly construed in favor of remand. Jackson v. Wal-Mart Stores Tex., LLC, 925 F.Supp.2d 810, 812 (N.D.Tex.2013) (Godbey, J.). Defendants are considered improperly joined when there is no reasonable possibility that a plaintiff will be able to establish a cause of action against them. Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir.2004). To determine “whether the complaint states a claim under state law against the in-state defendant,” the court “may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint.” Id. All factual allegations are considered in the light most favorable to the plaintiff, and contested fact issues are resolved in the plaintiffs favor. Guillory v. PPG Industries, Inc., 434 F.3d 303, 308 (5th Cir.2005). “The burden of persuasion on those who claim ... [improper] joinder is a heavy one.” Travis v. Irby, 326 F.3d 644, 649 (5th Cir.2003). While the Fifth Circuit has not provided definitive guidance on the issue, this Court has determined that it must review a plaintiffs complaint under the pleading standard of the state court in which it was brought. See Yeldell v. GeoVera Specialty Ins. Co., No. 3:12-CV-1908-M, 2012 WL 5451822, at *4-5 (N.D.Tex. Nov. 8, 2012) (Lynn, J.); Progressive Island, LLC v. Scottsdale Ins. Co., 3:13-CV-741-M, 2013 WL 6065414 (N.D.Tex. Nov. 18, 2013) (Lynn, J.). Texas state courts liberally construe a petition in the plaintiffs favor. Id. at 812; Lone Star Air Sys., Ltd. v. Powers, 401 S.W.3d 855, 861 (Tex.App.-Houston 2013, no pet.). Additionally, Texas courts look to the plaintiffs intent and uphold a petition, even if the plaintiff has not specifically alleged some element of a cause of action, by" }, { "docid": "14574786", "title": "", "text": "coverage for copyright infringement under the advertising coverage section of its CGL policy. The court found that the claims were part of the enumerated offenses constituting an “advertising injury.” However, because the insured failed to show “any connection” between the underlying lawsuit’s claims and Weber’s advertising injury, the court found no basis for coverage. Id. at 557. In the instant ease, however, IMC has established that nexus which entitles it to a defense under the advertising injury section of the policy. Not only was misappropriation of trade dress alleged in the underlying complaint, the required nexus between the advertising activities and damages alleged by County Line also proved the necessary causal nexus. G. American Manufacturers also moves for summary judgment against IMC’s claims under article 21.21 of the Texas Insurance Code and under the Texas Deceptive Trade Practices — Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq. (Vernon 1998). However, because genuine issues of material fact exist regarding those causes of action, American Manufacturers’ Motion for Summary Judgment as to those claims is denied. H. American Manufacturers, in its Reply to IMC’s Response to American Manufacturer’s Motion for Summary Judgment, “objects to and urges to strike” an opinion letter by Michael S. Quinn, an attorney specializing in insurance coverage matters writing on behalf of IMC. American Manufacturers contends that the letter is improper summary judgment evidence because it is an unsworn document, Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th Cir.1987), and because it contains unsubstantiated assertions, Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.1996) (en banc). The Court treats this pretrial “objection” as a motion to strike under Fed. R. Civ. P. 12(f). Although Mr. Quinn’s letter was not considered by the Court in resolving these Motions, the motion is well taken and accordingly is granted. IY. CONCLUSION Because there was potentially a case in the underlying complaint within the coverage of the policy, American Manufacturers therefore had a duty to defend IMC. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26" }, { "docid": "11010168", "title": "", "text": "v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827 (1958). Appellants cannot circumvent the procedure provided by § 3.3703(4) by characterizing their request for enforcement of the PPO rules as a request for a declaration of their contract rights and “related injunctive relief.” Therefore, we hold that the Texas Uniform Declaratory Judgment Act does not provide the appellants with a cause of action by which to enforce violations of or ensure compliance with the PPO rules. C. ARTICLE 21.21, SECTION 16(A) Appellants additionally argue that, despite the language of § 3.3703(4), enforcement by the Texas Department of Insurance under Article 21.21-2 is not the exclusive remedy for enforcement of the PPO rules. Appellants contend that, because the PPO rules were promulgated under Article 21.21 of the Texas Insurance Code, as well as Article 21.21-2, they can pursue a remedy for violation of the PPO rules through Article 21.21, § 16(a). Section 16(a) provides: Any person who has sustained actual damages as a result of another engaging in an act or practice declared in section 4 of this Article or in rules or regulations lawfully adopted by the Board [now Texas Department of Insurance] under this article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance ... may maintain an action against the person or persons engaging in such acts or practices. Tex.Ins.Code Ann. art. 21.21 § 16(a) (Vernon Supp.1995). Appellants argue that because the doctors have sustained actual damage as a result of Aetna’s deselection in violation of the PPO rules, they are entitled to pursue injunctive and “other relief’ under Tex.Ins. Code Ann. art. 21.21 § 16(b) (Vernon Supp. 1996). Aetna’ responds that appellants have no private cause of action under Article 21.21 § 16(a) as a matter of law because (1) Texas law does not declare a violation of the PPO rules to constitute an unfair method of competition or an unfair or deceptive act or practice, (2) the doctors are not “persons” for purposes of Article 21.21 § 16(a), and (3) the doctors have not suffered" }, { "docid": "5726887", "title": "", "text": "of good faith and fair dealing; (3) two violations of Tex. Ins. Code ANN. art. 21.21; (4) violations of Tex. Ins. Code Ann. art. 21.55; and (5) violations of the Texas Deceptive Trade Practices — Consumer Protection Act (“DTPA”). As the parties are diverse and the amount in controversy exceeds $75,000, defendants removed the case to this Court. See 28 U.S.C. § 1332(a). Following removal, the parties settled the breach of contract and Article 21.55 claims. See Mediator’s Report, filed September 28, 2001. Geico moves for summary judgment on the remaining claims, and that motion is now ripe for disposition. As Greil’s claims arise under state law, Texas law governs her substantive claims. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. See Fed. R. Crv. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir.1993). “The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party’s case.” Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.1998) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548). If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);" }, { "docid": "21869225", "title": "", "text": "of wrongdoing or adverse information. Nation Union Fire Ins. Co. of Pittsburgh, Pa. v. Willis, 139 F.Supp.2d 827, 832 (S.D.Tex.2001) (and cases cited therein), aff'd, 296 F.3d 336 (5th Cir.2002). Movants have not met this evidentiary burden here. . In Maryland Ins. Co. v. Head Industrial Coatings & Services, Inc., 938 S.W.2d 27, 28-29 (Tex.l996)(per curiam), the Texas Supreme Court held that the insured's right to challenge its insurer for unfair settlement acts was limited to the rights under the Stowers doctrine. Nevertheless, that action was filed before the Texas Legislature in 1995 amended Texas Insurance Code article 21.21 to add section 4(10), which provided a statutory private cause of action to an insured to sue its insurer for unfair settlement practices in settling third-party claims and defined as an unfair settlement practice \"failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer’s liability has become reasonably clear.\" See, e.g., Chickasha Cotton Oil Co. v. Houston Gen. Ins. Co., No. 05-00-01789-CV, 2002 WL 1792467, *7 (Tex.App.Dallas 2002, no pet.); Rocor Int’l, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 255, 258-60 (Tex.2002); Gulf Ins. Co. v. Jones, No. Civ. A. 300CV0330L, 2003 WL 22208551, *9 (N.D.Tex. Sept.24, 2003). The statute was recodified, eff. April 1, 2005 in Tex. Ins.Code Ann. § 541.060, Act of June 21, 2003, 78th Leg., R.S., 2003 Tex. Session Law Service ch. 1274 (Vernon’s). The parties here have not asserted that the insurers have a statutory duty to reasonably attempt settlement of a third-party claim against an assured. Nevertheless, the common law does permit an exposed insured to file a first-party action to challenge its insurer based on the reasonableness of a settlement offer that “exhausts or diminishes the proceeds available to satisfy other claims” because such a rule \"promotes settlement of lawsuits and encourages claimants to make their claims promptly.” Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315 (Tex. 1994); Citgo Petroleum, 166 F.3d at 765 (under Texas law an insurer may be liable if" }, { "docid": "11010170", "title": "", "text": "any actual damages as a result of any conduct prohibited by Article 21.21 § 16(a). Although the language of § 16(a) provides a cause of action to “any person,” the right to sue under § 16(a) has been limited by Texas courts to persons in privity of contract with the insurer on an insurance policy or an intended beneficiary of an insurance policy. In re Burzynski, 989 F.2d 733, 740 (5th Cir.1993); Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739, 744 (Tex. App.—Corpus Christi. 1993, writ denied) (stating that “no authority exists to extend the meaning of the term ‘person,’ as found in art. 21.21, beyond one who was either an insured or an intended beneficiary of the policy”); CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 791 (Tex.App.—Texarkana 1992, writ denied); Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728, 731 (Tex.App.—Houston [14th Dist.] 1987, writ refd n.r.e.). The doctors are neither in privity of contract with Aetna on an insurance policy nor intended beneficiaries of an insurance policy. Therefore, the appellants cannot maintain a suit under Tex.Ins.Code Ann. art. 21.21 § 16(a). Because we determine that the doctors are not “persons” within the meaning of § 16(a), we do not address Aetna’s additional arguments that violations of the PPO rules are not declared to be unfair methods of competition or unfair or deceptive acts or practices and that the doctors have not suffered any actual damages. D. ARTICLE 21.21, SECTION 4(7)(B) Finally, appellants argue that, despite § 3.3703(4), they can pursue a private cause of action for violations of the PPO rules under former Texas Insurance Code Article 21.21 § 4(7)(b) (Vernon Supp.1995). Former Texas Insurance Code Article 21.21 section 4(7)(b) prohibits unfair discrimination in the business of insurance. Tex.Ins.Code Ann. art. 21.21 § 4(7)(b) (Vernon Supp.1995). Unfair discrimination is defined as: Making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard in the amount of premium, policy fees, or rates charged for any policy or contract of accident or health insurance or in the benefits payable" }, { "docid": "22192408", "title": "", "text": "in a case such as this, where some of the evidence on which Liberty relied to deny LTD benefits to Ellis arose in May and June 2000, before it initially granted her LTD benefits. . See Tex. Ins. Code § 21.21. . See Tex. Ins. Code § 21.55. . Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). . 538 U.S. 329, 341-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003). . 29 U.S.C. § 1144(b)(2)(B) (\"Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.”). . Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634, 640 (5th Cir.2004). . There are two types of preemption under ERISA. ERISA may occupy a particular field, which results in complete preemption under 29 U.S.C. § 1132(a). See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). \"Section 502 [1132(a)], by providing a civil enforcement cause of action, completely preempts any state cause of action seeking the same relief, regardless of how artfully pleaded as a state action.” Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337 (5th Cir.1999). Complete preemption permits removal to federal court because the cause of action arises under federal law. See id. The parties do not dispute, and the district court properly concluded, that for purposes of removal, Ellis’s state law breach of contract claim arose under federal law because it is one for the recovery of benefits under Section 1132(a). See Arana v. Ochsner Health Plan, 338 F.3d 433, 438 (5th Cir.2003) (en banc) (noting that a claim \"to recover benefits" }, { "docid": "11010164", "title": "", "text": "action in accordance with the Insurance Code, Article 21.21-2, and the provisions of that arti cle shall be utilized insofar as practicable, as it relates to the power of the board [now Department], hearings, orders, enforcement, and penalties. 28 Tex.Admin.Code § 3.3703(4). The district court concluded that § 3.3703(4) precludes the existence of a private cause of action to enforce the PPO rules by establishing that action under Texas Insurance Code Article 21.21-2 shall be the exclusive enforcement mechanism for these rules. We agree. Texas Insurance Code Article 21.21-2 § 6(a) authorizes the State Board of Insurance (now the Texas Department of Insurance) to ensure compliance with the Insurance Code. Tex.Ins.Code Ann. art. 21.21-2 § 6(a) (Vernon Supp.1996). Texas courts have repeatedly held that no private cause of action exists under article 21.21-2. See, e.g., Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 148 (Tex.1994); Maryland Ins. Co. v. Head Indus. Coatings & Servs., Inc., 906 S.W.2d 218, 225 (Tex.App.—Texarkana 1995, no writ); Progressive County Mut. Ins. Co. v. Boman, 780 S.W.2d 436, 437 n. 1 (Tex.App.—Texarkana 1989, no writ) (noting that “[t]he Unfair Claims Settlement Practices Act [article 21.21-2] does not purport to give individuals a private cause of action. Rather, it authorizes the State Board of Insurance to investigate and impose sanctions ...”); Cantu v. Western Fire & Casualty Ins. Co., 716 S.W.2d 737, 741 (Tex.App.—Corpus Christi 1986), writ ref'd. n.r.e. per curiam, 723 S.W.2d 668 (Tex.1987). Because § 3.3703(4) refers solely to Article 21.21-2 for the manner in which the PPO rales may be enforced, the appellants may not bring a judicial action to privately enforce the PPO rules. The appellants argue that, despite the reference of § 3.3703(4) to Article 21.21-2 for enforcement of the PPO rules, they may seek a declaratory judgment of their “contract rights,” and pursue relief through the private causes of action available under Texas Insurance Code Article 21.21 §§ 16(a) and 4(7)(b). B. DECLARATORY JUDGMENT The appellants argue that, even if no private cause of action exists, they are entitled to a declaratory judgment regarding their “contract rights,” relying on the" } ]

[ { "docid": "16263575", "title": "", "text": "under Rule 23(b)(3), which requires that (i) common questions of law or fact predominate (predominance), and (ii) the class action is the superior method for adjudication (superiority). “Confronted with a request for a settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal citation omitted). However, the “other specifications of [Rule 23] — those designed to protect absentees by blocking unwarranted or overbroad class definitions — demand undiluted, even heightened, attention in the settlement context.” Id. The sole disputed Rule 23 requirement in this case, as it was in Community Bank I, is adequacy of representation, both as to the named plaintiffs and their counsel. “The inquiry that a court should make regarding the adequacy of representation requisite of Rule 23(a)(4) is to determine that the putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously, ... and that there is no conflict between the individual’s claims and those asserted on behalf of the class.” Hassine v. Jeffes, 846 F.2d 169, 179 (3d Cir.1988). This inquiry is vital, as “class members with divergent or conflicting interests [from the named plaintiffs and class counsel] cannot be adequately represented.... ” In re Diet Drugs Prods. Liab. Litig., 385 F.3d 386, 395 (3d Cir.2004). “Although questions concerning the adequacy of class counsel were traditionally analyzed under the aegis of the adequate representation requirement of Rule 23(a)(4) ... those questions have, since 2003, been governed by Rule 23(g).” Sheinberg v. Sorensen, 606 F.3d 130, 132 (3d Cir.2010). That subsection lists several non-exclusive factors that a district court must consider in determining “counsel’s ability to fairly and adequately represent the interests of the class,” Fed.R.Civ.P. 23(g)(1)(B), including: (1) “the work counsel has done in identifying or investigating potential claims in the action,” (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action,” (3) “counsel’s" } ]

[ { "docid": "16110007", "title": "", "text": "class under Rule 23(b)(3) after concluding that common questions predominate over individual ones and that a class action is superior to other methods of adjudicating the matter. We review a district court’s decision to certify a class for abuse of discretion. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000). A district court “ ‘abuses’ or ‘exceeds’ its discretion when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir.2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001)). When a court is asked to certify a class and approve its settlement in one proceeding, the Rule 23(a) requirements designed to protect absent class members “demand undiluted, even heightened, attention.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Objectors argue that the Settlement contravenes Rule 23(a)(4) because the named plaintiffs failed to adequately represent the interests of class members who hold only Category C claims (“Category C-only plaintiffs”). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. To satisfy Rule 23(a)(4), the named plaintiffs must “possess the same interests] and suffer the same injuries] as the class members.” Id. at 625-26, 117 S.Ct. 2231 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)) (internal quotation marks omitted). “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). Not every conflict among subgroups of a class will prevent class" }, { "docid": "16110008", "title": "", "text": "U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Objectors argue that the Settlement contravenes Rule 23(a)(4) because the named plaintiffs failed to adequately represent the interests of class members who hold only Category C claims (“Category C-only plaintiffs”). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. To satisfy Rule 23(a)(4), the named plaintiffs must “possess the same interests] and suffer the same injuries] as the class members.” Id. at 625-26, 117 S.Ct. 2231 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)) (internal quotation marks omitted). “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). Not every conflict among subgroups of a class will prevent class certification—the conflict must be “fundamental” to violate Rule 23(a)(4). See In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.2009). Where such a conflict does exist, it can be cured by dividing the class into separate “homogeneous subclasses ... with separate representation to eliminate conflicting interests of counsel.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 856, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); see also Fed.R.Civ.P. 23(c)(5) (“When appropriate, a class maybe divided into subclasses that are each treated as a class under this rule.”). According to objectors, there was such a conflict here: the named plaintiffs, who hold combinations of all three categories of claims, favored the fewer and more lucrative Category A and B claims over the Category C claims. A subclass of plaintiffs owning unregistered claims should therefore have been carved out of the class, objectors argue. Publishers and authors vigorously defend the Settlement and the adequacy of named plaintiffs’ representation. A. We begin our analysis by turning to a pair of Supreme Court decisions that set the" }, { "docid": "16079572", "title": "", "text": "Compaq neither challenges the adequacy of class counsel nor contends that any conflict between the representatives and the class members precludes certification, so the question is whether the court applied the correct legal standard in determining the adequacy of the class representatives under rule 23, i.e., whether the putative class representatives are “willing” and “able” to “take an active role in and control the litigation and to protect the interests of absentees.” This court has determined that [t]he adequacy requirement mandates an inquiry into [1] the zeal and competence of the representative^’] counsel and ... [2] the willingness and ability of the representative^] to take an active role in and control the litigation and to protect the interests of absentees!.] See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir.1982) (citations omitted). The adequacy inquiry also “serves to uncover conflicts of interest between the named plaintiffs and the class they seek to represent.” See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Furthermore, because absent class members are conclusively bound by the judgment in any class action brought on their behalf, the court must be especially vigilant to ensure that the due process rights of all class members are safeguarded through adequate . representation at all times. Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only where those differences create conflicts between the named plaintiffs’ and the class members’ interests. Although we do not know whether the named plaintiffs could meet the adequacy standard, we do know that the district court erred in two respects. First, it improperly shifted the burden of proof to the defendants by adopting a presumption that the class representatives and their counsel are adequate in the absence of specific proof to the contrary. Second, it applied an impermissibly lax standard for adequacy that ignores the PSLRA’s mandate that class representatives, and not lawyers, must direct and control the litigation. The Investors’ arguments to salvage both rulings are unpersuasive. A. The district court unquestionably adopted an incorrect legal standard" }, { "docid": "16993395", "title": "", "text": "time to make reasonable efforts to recruit and identify a new representative”). Plaintiffs must establish that there is an individual class representative with standing to sue each defendant. The Track One defendants have supplemented their submissions by showing that in Swanston v. Tap Pharm. Prods., Inc., No. CV2002-004988 (Ariz.Super.Ct), a parallel proposed class action this Court remanded to the Arizona state court, the named class representative made no payments based on AWP and was therefore not a member of the class he sought to represent. Defendants point to this as proof that extensive individual inquiry is necessary to determine class membership. Arguably, class representa tives who were fully reimbursed suffered no injury. See In re Relafen Antitrust Litigation, 221 F.R.D. 260, 270-71 (D.Mass.2004) (excluding from the class all end payors who were reimbursed in full for all drug purchases). To address this issue, when plaintiffs amend the complaint to propose individual class representatives, they shall allege facts demonstrating typicality and adequacy of the class representatives and disclose the documents demonstrating that the proposed class representatives made co-insurance payments (at least in part) under Medicare Part B based on AWP. Because plaintiffs state that they have individuals waiting in the wings, the Court will continue to address the other certification requirements. 4. Adequacy “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The [adequacy] rule has two parts. The moving party must show first that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced, and able to vigorously conduct the proposed litigation. Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.1985). “The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage.” Visa Check, 280 F.3d at 145. While the Court must defer" }, { "docid": "12196561", "title": "", "text": "“[prerequisites to a [c]lass [a]ction”: (1) numerosity (a “class [so large] that joinder of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (named parties’ claims or defenses “are typical ... of the class”); and (4) adequacy of representation (representatives “will fairly and adequately protect the interests of the class”). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Fed.R.Civ.P. 23(a)). The defendants do not contest that the first three prerequisites are met here. We therefore confine our consideration to the fourth — adequacy of representation. Determination of adequacy typically “entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000). This process “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. The district court did not find it necessary to engage in either part of the typical inquiry. The court decided that, irrespective of whether Cordes and Creditors Trust could satisfy the Baffa factors, they cannot be representatives of the class because they do not themselves fit within the definition of the class as set forth in the Complaint. It is plain that Cordes and the Creditors Trust are not members of the proposed issuer class and that, as a consequence — and assuming arguendo that they meet the other qualifications for class representation — they cannot represent the issuer class. Plaintiffs in response cite the undisputed proposition that antitrust claims are assignable. That is beside the point. To allow Cordes or the Creditors Trust to represent the proposed class would, in effect, treat class membership as a transferable asset, and that could plainly lead to very serious problems indeed in the class action field. District Court Opinion, 2006 WL 1026653, at *4, 2006 U.S. Dist. LEXIS 21076, at *13-*14 (footnote omitted). The" }, { "docid": "19270267", "title": "", "text": "involving the Specialist Firms on the NYSE. See Cheseldine Dep., Vol. I, at 26-27, PLEx. N. “As long as plaintiffs assert, as they do here, that defendants committed the same wrongful acts in the same manner, against all members of the class, they establish [the] necessary typicality.” In re Towers Fin. Corp., Noteholders Litig., 177 F.R.D. 167, 170 (S.D.N.Y.1997) (internal quotation marks and citation omitted); see Robidoux v. Cela-ni, 987 F.2d 931, 936-37 (2d Cir.1993) (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”). Since the Specialist Firms have presented no evidence that CalPERS and Market Street allege different wrongful conduct or are subject to unique defenses that render them atypical of other class members, the typicality requirement is satisfied. 4. Adequacy of Representation The final requirement of Rule 23(a) is adequacy of representation, necessitating a showing that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “[A]dequaey of representation entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation.” Baffa, F.3d at 60. The analysis focuses on whether the proposed class representatives possess “the same interest and suffer the same injury as the class members.” Amchem Prods. v. Windsor, 521 U.S. 591, 625-26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal quotations and citation omitted). The focus is on uncovering “conflicts of interest between named parties and the class they seek to represent.” Id. at 625, 117 S.Ct. 2231. The Specialist Firms contend that “fundamental” conflicts within the purported class render it uncertifiable. See In re Visa, 280 F.3d at 145 (2d Cir.2001) (“The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental .... ” (internal quotations and citation omitted)). Defendants raise three potential conflicts: 1) between buyers and sellers with respect" }, { "docid": "23061669", "title": "", "text": "are discretionary, see In re Mego Fin. Corp. Sec, Litig., 213 F.3d 454, 463 (9th Cir.2000), and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general. Awards are generally sought after a settlement or verdict has been achieved. The incentive agreements entered into as part of the initial retention of counsel in this case, however, are quite different. Although they only bound counsel to apply for an award, thus leaving the decision whether actually to make one to the district judge, these agreements tied the promised request to the ultimate recovery and in so doing, put class counsel and the contracting class representatives into a conflict position from day one. The arrangement was not disclosed when it should have been and where it was plainly relevant, at the class certification stage. Had it been, the district court would certainly have considered its effect in determining whether the conflicted plaintiffs — Rodriguez, Frailich, Nesci, Brazeal, and Gintz — could adequately represent the class. The conflict might have been waived, or otherwise contained, but the point is that uncovering conflicts of interest between the named parties and the class they seek to represent is a critical purpose of the adequacy inquiry. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)); see also Amchem Prods., 521 U.S. at 625-26, 117 S.Ct. 2231. An absence of material conflicts of interest between the named plaintiffs and their counsel with other class members is central to adequacy and, in turn, to due process for absent" }, { "docid": "5928162", "title": "", "text": "the interest of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy requirement is satisfied where the named representative (1) has retained competent counsel, (2) has a sufficient interest in the outcome of the case to ensure vigorous advocacy, and (3) does not have interests antagonistic to those of the class. In re VMS Ltd. Pshp. Sec. Lit., No. 90 C 2412, 1992 U.S. Dist. LEXIS 14445, at *13 (N.D.I11. Sept. 23, 1992). The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (U.S. 1997). “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26, 117 S.Ct. 2231 (citations omitted). Defendants argue (1) owner’s interests diverge from the interests of non-owner purchasers since the court must determine a fixed award for each window in order to prevent double recovery; (2) the interests of named plaintiffs diverge from those of the class where Plaintiffs are engaged in claim splitting — ■ named Plaintiffs have expressed an intent to seek damages for property damage but are not seeking remedies for such claims on class certification; and (3) the interests of the latent and manifest defect groups are not aligned in that individuals with manifest defects will want immediate payments, and those with latent defects will want a go-to fund for future use. Defendants’ first argument is overcome by the proposed class structure. The declaratory judgment and injunctive relief sought here apply only to a class of structure owners whose windows are either latently defective or are manifesting a defect but have not yet been replaced. The consumer fraud class, seeking damages, includes only those who have had a manifest defect and whose windows have been replaced. If the defect is manifest and the window has not yet been replaced, the remedy is that the window be fixed. If the defect is manifest and the window has been replaced, the party who paid" }, { "docid": "1564693", "title": "", "text": "adequacy of representation under Rule 23(a)(4), the plaintiff must show the following: that the putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously, [2] that he or she has obtained adequate counsel, and [3] that there is no conflict between the individual’s claims and those asserted on behalf of the class. Hassine v. Jeffes, 846 F.2d 169, 179 (3d Cir.1988) (citations omitted). Nothing in the record suggests that plaintiffs have been unwilling or unable to prosecute the claims of the putative class members. See Grasty v. Amalgamated Clothing & Textile Workers Union, 828 F.2d 123, 128-29 (3d Cir.1987) (noting that vigorous prosecution of claims by named representative is important factor in meeting the adequacy of representation requirement), overruled in part on other grounds by Reed v. United Transp. Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989). Although plaintiff seeks recovery in full for his own claims in addition to his pro rata share of the class claims, this apparent conflict, as discussed below, in the context of this case, is not fatal because some form of recovery beyond the pro rata share of the common fund is expressly permitted under the statutory scheme of FDCPA. See Windsor, 521 U.S. at 625, 117 S.Ct. 2231 (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.”); Grasty, 828 F.2d at 128-29 (noting that absence of conflict is another important factor “in determining the adequacy of representation”), overruled in part on other grounds by Reed v. United Transp. Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989). Finally, the court finds plaintiffs counsel is “qualified, experienced, and generally able to conduct the proposed litigation.” Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.1975). Counsel for plaintiff represented to the court that they have “substantial experience in class action litigation.” See Motion for Preliminary Approval f 2.06, doe. no. 19. During the August 18, 2000 hearing on this matter, counsel, in response to questions concerning the" }, { "docid": "16110041", "title": "", "text": "certify a class bears the burden of satisfying Rule 23(a)’s four threshold requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Fed. R.Civ.P. 23(a). As the objectors to the Settlement do not contest that the first three prerequisites are met here I, like the majority, confine my discussion to the fourth: adequacy of representation. In determining whether Rule 23(a)(4)’s adequacy requirement is satisfied, the most important factors are whether the class representatives have any “interests antagonistic to the interests of other class members,” and relatedly, whether the representatives “have an interest in vigorously pursuing the claims of the class,” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). See Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent”). In answering these questions, the “terms of the settlement” and “the structure of negotiations” are relevant factors, but the focus must always remain on whether “the interests of those within the single class are ... aligned.” Amchem, 521 U.S. at 626-27, 117 S.Ct. 2231. Even if a conflict is discovered, it will not “necessarily defeat class certification — the conflict must be ‘fundamental.’ ” Denney, 443 F.3d at 268 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir.2001)). While we have yet to explicitly define a “fundamental” conflict, such a conflict must go to the “very heart of the litigation,” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 246 (2d Cir.2007). See 6 Alba Conte & Herbert Newberg, Newberg on Class Actions § 18:14 (4th ed.2002) (discussing antitrust class actions); see also Gunnells v. Health-plan Servs., Inc., 348 F.3d 417, 430-31 (4th Cir.2003). It exists when “the interests of the class representative can be pursued only at the expense of the interests of all the class members.” 1 Conte & Newberg, supra, § 3:26. A “fundamental” conflict may not be “merely speculative or hypothetical.” 5 James Wm. Moore et al„ Moore’s" }, { "docid": "12188904", "title": "", "text": "concerning the alleged conflict, whether those omissions or misrepresentations were false or misleading, and whether the price of GS stock was artificially inflated as a result of the omissions or misrepresentations. {See PL’s Mem. at 8-11.) The Court finds that the claims of the proposed plaintiff class arise out of the same alleged facts and are based on common legal theories. Accordingly, the commonality and typicality requirements are met. 3. Adequacy Finally, under Rule 23(a)(4), Plaintiff must demonstrate that he is an adequate lead plaintiff. For the reasons that follow, the Court finds that Plaintiff meets the adequacy x’equirement. Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” A “[djetermination of adequacy typically ‘entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation.’ ” Cordes & Co. Fin. Servs., 502 F.3d at 99 (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000)). The inquiry is designed “to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In addition, “[cjourts also consider ‘whether a putative representative is familiar with the action, whether he has abdicated control of the litigation to class counsel, and whether he is of sufficient moral character to represent a class.’” Niemiec v. Ann Bendick Realty, No. 04 Civ. 897(ENV), 2007 WL 5157027, at *12 (E.D.N.Y. Apr. 23, 2007) (quoting Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 339 (S.D.N.Y.2004)); see also Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir.1998) (“To judge the adequacy of representation, courts may consider the honesty and trustworthiness of the named plaintiff’); In re NYSE Specialists Sec. Litig., 240 F.R.D. 128, 144 (S.D.N.Y.2007) (“The Second Circuit has allowed for the consideration of charactei’istics such as honesty, trustwoi'thiness, and credibility in judging the adequacy of a class representative pursuant to Rule 23(a).”) (collecting" }, { "docid": "5928161", "title": "", "text": "to the challenged action of the defendant and ‘likely,’ as opposed to merely ‘speculative,’ to be ‘redressed by a favorable decision.’ ” Payton v. County of Kane, 308 F.3d 673, 676-677, 682 (7th Cir.2002) (citations omitted). The Seventh Circuit has followed the Supreme Court’s direction in Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) and held that class certification should normally precede Article III standing challenges. Payton, 308 F.3d at 680. Additionally, courts have permitted named plaintiffs to represent class members from other states in which the representatives did not reside or make purchases. See, e.g., In re Relafen Antitrust Litig., 221 F.R.D. 260, 267-69 (D.Mass.2004) (certifying named plaintiffs who purchased the drug at issue only in certain states to represent class members who purchased the drug in other states, and deferring consideration of argument that named plaintiffs lacked standing to assert claims on behalf of those class members) (citing Payton, 308 F.3d at 681). c. Adequacy Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interest of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy requirement is satisfied where the named representative (1) has retained competent counsel, (2) has a sufficient interest in the outcome of the case to ensure vigorous advocacy, and (3) does not have interests antagonistic to those of the class. In re VMS Ltd. Pshp. Sec. Lit., No. 90 C 2412, 1992 U.S. Dist. LEXIS 14445, at *13 (N.D.I11. Sept. 23, 1992). The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (U.S. 1997). “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26, 117 S.Ct. 2231 (citations omitted). Defendants argue (1) owner’s interests diverge from the interests of non-owner purchasers since the court must determine a fixed award for each window in order to prevent double recovery; (2) the interests of named plaintiffs" }, { "docid": "7528108", "title": "", "text": "whether those claims constitute full or partial interests. However, “individualized damage determinations” do not preclude class certification, Barnes, 68 Fed.Cl. at 492, and such differences do not detract from the shared essential characteristics of the potential class members’ legal claims. Accordingly, plaintiff has satisfied the typicality requirement. E. Adequacy In addition to establishing numerosity, commonality, and typicality, a putative class representative must establish that it will “fairly and adequately protect the interests of the class,” RCFC 23(a)(4). There are two aspects to the adequacy requirement: (1) the existence of conflicts between the putative class representative and members of the proposed class, and (2) the qualifications and capabilities of proposed class counsel. Wal-Mart, 564 U.S. at 349 n.5, 131 S.Ct. 2541; Amchem Prods., 521 U.S. at 625-26 & n.6, 117 S.Ct. 2231; King, 84 Fed.Cl. at 127. 1. Conflicts of Interest The first component of the adequacy-requirement addresses whether there are any conflicts of interest precluding a plaintiff from serving as class representative. See Amchem Prods., 521 U.S. at 625, 117 S.Ct. 2231 (“The adequacy inquiry under [RCFC] 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.”). Class representatives must be “part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26, 117 S.Ct. 2231 (internal quotation marks omitted). In other words, class members “must not have interests that are antagonistic to one another” or to the class representative. Barnes, 68 Fed.Cl. at 499 (internal quotation marks omitted). Besides contesting the definition of the proposed class, defendant’s chief objection to class certification is that plaintiff, as class representative, will not be able to fairly and adequately protect the interests of all of the putative class members because there is a potential conflict of interest between class members who completed assessment work and the FLPMA filings for the 2013 assessment year, and those who did not. Defendant argues that putative class members who failed to conduct assessment work and complete the FLPMA filings may “leave nothing securing their pre-1993 [unpatented] nonpla-cer claims, ... rendering]" }, { "docid": "21087964", "title": "", "text": "claiming a taking by operation of the Rails-to-Trails Act and seeking just compensation under the Fifth Amendment through the Little Tucker Act. Thus, the Court is convinced that the interests of the representative Plaintiffs are coextensive with, and typical of, the claims of the proposed class members. 4. Rule 23(a)(4): Adequacy of Representation The final criterion under Rule 23(a) requires that the named Plaintiffs and their counsel “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. Two elements must be satisfied: (1) concerns regarding the qualifications of counsel; and (2) concerns regarding the relationship between interests of the class representative and the interests of other class members. Smith, 88 F.Supp.2d at 677. Defendant concedes that it has “no doubt as to the quality of plaintiffs’ chosen counsel[.]” The Court agrees. Plaintiffs’ counsel have years of experience litigating class actions in general, and class actions specifically concerning railroad right-of-way ownership issues. Thus, the Court has no concerns regarding the qualifications of counsel that would defeat the adequacy of representation requirement. Defendant contends, however, that antagonisms and divergence of interest between named Plaintiffs and putative class members defeat the adequacy of representation requirement. Defendant argues that the adjudication of a takings claim is so individualized and fact-specific that Plaintiffs are unable to establish the requisite sharing of interests and absence of antagonism. The Fifth Circuit has held that differences between named Plaintiffs and class members render the named Plaintiffs inadequate representatives “only if those differences create conflicts between the named plaintiffs’ interests and the class members’ interests.” Mullen, 186 F.3d at 625-26. The adequacy of representation element is satisfied if the named Plaintiffs’ interests are “sufficiently aligned with those of other class members---- This element requires similarity, not identity of interests.” Smith, 88 F.Supp.2d at 678. Further, the district court may re-evaluate class certification and adequacy of representation in light of evidence adduced at trial, and may take appropriate steps if inadequacy of" }, { "docid": "23061670", "title": "", "text": "determining whether the conflicted plaintiffs — Rodriguez, Frailich, Nesci, Brazeal, and Gintz — could adequately represent the class. The conflict might have been waived, or otherwise contained, but the point is that uncovering conflicts of interest between the named parties and the class they seek to represent is a critical purpose of the adequacy inquiry. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)); see also Amchem Prods., 521 U.S. at 625-26, 117 S.Ct. 2231. An absence of material conflicts of interest between the named plaintiffs and their counsel with other class members is central to adequacy and, in turn, to due process for absent members of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). In fact, the incentive agreements came to the fore when Objectors pounced on them in opposing class counsel’s motion for incentive awards to the class representatives. This happened after preliminary approval of the settlement. In that context the district court held that the agreements were inappropriate and contrary to public policy for a number of reasons: they obligate class counsel to request an arbitrary award not reflective of the amount of work done, or the risks undertaken, or the time spent on the litigation; they create at least the appearance of impropriety; they violate the California Rules of Professional Conduct prohibiting fee-sharing with clients and among lawyers; and they encourage figurehead cases and bounty payments by potential class counsel. The court found it particularly problematic that the incentive agreements correlated the incentive request solely to the settlement or litigated recovery, as the effect was to make the contracting class representatives’ interests actually different from the class’s interests in settling a case" }, { "docid": "16993396", "title": "", "text": "made co-insurance payments (at least in part) under Medicare Part B based on AWP. Because plaintiffs state that they have individuals waiting in the wings, the Court will continue to address the other certification requirements. 4. Adequacy “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The [adequacy] rule has two parts. The moving party must show first that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced, and able to vigorously conduct the proposed litigation. Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.1985). “The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage.” Visa Check, 280 F.3d at 145. While the Court must defer ruling on individual representatives, the Court is satisfied that counsel is qualified. Counsel has conducted numerous class actions, and recently brought the Lupron suit, which raises similar drug-pricing issues, to a settlement. See In re Lupron Mkting. & Sales Practices Litig., 228 F.R.D. 75 (D.Mass.2005). 5. Predominance “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623, 117 S.Ct. 2231. “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of antitrust laws.” Id. at 625, 117 S.Ct. 2231. “Where ... common questions predominate regarding liability, then courts generally find the predominance requirement to be satisfied even if individual damages issues remain,” for “[t]he individuation of damages in consumer class actions is rarely determinative under Rule 23(b)(3).” Smilow, 323 F.3d at 40; see also Tardiff, 365 F.3d at 6-7 (noting that individuals subject to allegedly illegal strip search may have individual damages from emotional distress, lost wages, and medical treatment, but that these damages issues do not" }, { "docid": "20545047", "title": "", "text": "typicality, we ask “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). “ ‘[FJactual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.’ ” Id. at 58 (quoting Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir.1992)). The adequacy inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). It “assures that the named plaintiffs’ claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.” Baby Neal, 43 F.3d at 55. The Supreme Court has noted the typicality and adequacy inquiries often “tend[] to merge” because both look to potential conflicts and to “whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Amchem, 521 U.S. at 626 n. 20, 117 S.Ct. 2231 (quoting Gen. Tel. Co. Sw. v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Because of the similarity of these two inquiries, certain questions — like whether a unique defense should defeat class certification — are relevant under both. Maximus contends its alleged bona fide error defense renders Beck neither typical nor adequate as a class representative. Beck disputes that the alleged defense renders her atypical, but does not address its effect on her adequacy of representation. The District Court also addressed the issue exclusively in terms of typicality. We believe the alleged unique defense is relevant under both inquiries. Accordingly, we will address both the typicality" }, { "docid": "18068518", "title": "", "text": "assert that such products suffer from the identical false representations. Cannon, 184 F.R.D. at 544. Accordingly, the named plaintiffs’ claims are typical of the proposed class’ claims and they have standing to pursue them. 4. Adequacy Fourth, the Court must find that the representative parties will “fairly and adequately protect the interests of the class.” In re Warfarin, 391 F.3d at 532 (quoting Fed.R.Civ.P. 23(a)(4)). The Rule 23 adequacy inquiry “has two components designed to ensure that absentee’s interests are fully pursued.” Id. (quoting Georgine, 83 F.3d at 630). First, when evaluating adequacy, emphasis is placed on determining whether the named plaintiffs’ counsel will adequately represent the class. In re Warfarin, 391 F.3d at 532; In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 800 (3d Cir.1995) (“In re General Motors”). To this end, courts consider whether plaintiffs attorney is qualified, experienced, and able to conduct the litigation. In re Prudential, 148 F.3d at 312 (quoting In re General Motors, 55 F.3d at 800). Second, courts must evaluate “conflicts of interest between named parties and the class they seek to represent.” In re Warfarin, 391 F.3d at 532; In re Prudential, 148 F.3d at 312 (quoting Amchem, 521 U.S. at 625). As to the adequacy of the named plaintiffs to represent the class, the court must determine if there is “ ‘antagonism between [named plaintiffs’] objectives and the objectives of the [class], [which constitutes] a ‘legally cognizable conflict of interest’ between the two groups.” In re Ins. Brokerage Antitrust Litigation, Civ. No. 04-5184, 2007 WL 542227, *15 (D.N.J. Feb. 16, 2007) (quoting Jordan v. Commonwealth Fin. Sys., Inc., 237 F.R.D. 132, 139 (E.D.Pa.2006)). A conflict will not be sufficient to defeat a class action “unless [that] conflict is apparent, imminent, and on an issue at the very heart of the suit.” Id. (quoting In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 482 (W.D.Pa.1999) (internal quotation marks omitted)). Here, defendants do not contest that plaintiffs’ counsel has the experience and resources to represent the class. Rather, defendants contend that the counsel will not fairly" }, { "docid": "4889186", "title": "", "text": "Concentra provided the services challenged in this lawsuit. Their claims arise out of Concentra’s system-wide business practices allegedly resulting in reduced payments to all class members. Because of the similarity of the underlying claims, plaintiffs can reasonably be expect ed to advance the interests of all class members, and the typicality requirement of Rule 23 is met. D. Adequate Representation A representative plaintiff must be able to provide fair and adequate protection for the interests of the class. The adequacy inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Beck v. Maximus, 457 F.3d at 296, quoting Amchem, 521 U.S. at 625, 117 S.Ct. 2231. It “assures that the named plaintiffs claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.” Beck, 457 F.3d at 296, quoting Baby Neal, 43 F.3d at 55. The first inquiry in assessing adequate representation is whether the named plaintiffs’ claims are antagonistic to the class. One conflict cited by the objectors relates to the proposed compensatory payments for the named plaintiffs, but these payments are common in class action settlements and do not render the representatives inadequate if based on services rendered in the class action. See, e.g., Nichols v. SmithKline Beecham Corp., 2005 WL 950616, at *24, 2005 U.S. Dist. LEXIS 7061, at *80 (E.D.Pa. Apr. 22, 2005). Another alleged conflict is between current and former members of the Focus PPO. See Dameron Obj. at p. 4. However, the interests of the former PPO members do not “tug against the interests” of the current members by virtue of this settlement. Amchem, 521 U.S. at 626, 117 S.Ct. 2231. This situation is distinguishable from those involving a monetary settlement fund, where more money for current PPO members must mean less money for former members. Cf. id. at 626-627, 117 S.Ct. 2231 (disapproving asbestos settlement because of the possibility that settlement fund could be exhausted before class members with future illnesses were eligible for payment). The settlement calls" }, { "docid": "9838240", "title": "", "text": "803, 813 (7th Cir.2013). “Only conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.” 1 William B. Rubenstein et al., Newberg on Class Actions § 3.58 (5th ed.2011). A conflict is fundamental when it goes to the specific issues in controversy. Id. Cox argues the district court certified a class in violation of Rule 23(a), because the class representatives are not able to adequately represent the class. Relying on Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 187-89 (3d Cir.2012), Cox argues the representatives are not capable of adequately representing the class because the nine class representatives’ awards under the settlement, at $5,000 each, are significantly larger than the $12 each unnamed class member will receive. Cox argues that, like in Dewey, there is an arbitrary line drawn in this case between class representatives and all other class members. However, incentive awards that are intended to compensate class representatives for work undertaken on behalf of a class “are fairly typical in class action cases.” Rodriguez, 563 F.3d at 958. Incentive payments to class representatives do not, by themselves, create an impermissible conflict between class members and their representatives. Cobell v. Salazar, 679 F.3d 909, 922 (D.C.Cir.2012); White v. Nat’l Football League, 41 F.3d 402, 408 (8th Cir.1994), abrogated on other grounds by Amchem Prods, v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Rather, “Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020. As to the latter question, “[t]he relevant inquiry is whether the plaintiffs maintain a sufficient interest in, and nexus with, the class so as to ensure vigorous representation.” Roper v. Consurve, Inc., 578 F.2d 1106, 1112 (5th Cir.1978). Here, as in Hanlon, there were no structural differences in the claims of the class representatives and the other class members. Hanlon," } ]