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4,140,271 | 3,628,546 | 1934-10-17 | United States District Court for the District of Maryland | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co. | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co., 8 F. Supp. 620 (1934) | 1923-11-22 | United States District Court for the Eastern District of New York | United States ex rel. Ganford Co. v. Conners | United States ex rel. Ganford Co. v. Conners, 295 F. 521 (1923) | 3628546_1 | That in all suits instituted under the provisions of this section such personal notice of the pendency of such suits, informing them of their right to intervene as the court may order, shall be given to all known creditors, and in addition thereto notice of publication in some newspaper of general circulation, published in the State or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited therefor. | A letter to the clerk of this court from Alfred G. Bennett, of the Bureau of Liquidations of the Insurance Department of the State of New York under date of December 29, 1933, states that the General Indemnity Corporation had been dissolved and placed in liquidation by an order of the Supreme Court of New York County on August 16, 1933, which order “restrains continuance of any actions against the company or the commencement of new actions,” in consequence of which that Department declined to accept service for the General Indemnity Corporation.
“ |
4,140,271 | 3,628,546 | 1934-10-17 | United States District Court for the District of Maryland | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co. | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co., 8 F. Supp. 620 (1934) | 1923-11-22 | United States District Court for the Eastern District of New York | United States ex rel. Ganford Co. v. Conners | United States ex rel. Ganford Co. v. Conners, 295 F. 521 (1923) | 3628546_0 | not the essence of the jurisdiction of the court | As to the latter point it is sufficient to say that the Circuit Court of Appeals for this Circuit has very recently decided to the contrary in the ease of United States, to the Use of Colonial Brick Corporation, v. Federal Surety Company and E. W. Clark, Receiver thereof, 72 F.(2d) 964, decided October 2,1934, where, in a precisely similar situation (a suit under the Hurd Act), it was held that the receiver of the dissolved Iowa surety company might be sued (under the Hurd Act) despite a general order of the state court appointing him to the contrary. The decision was based largely on the authority of Hopkins, Receiver, v. United States, 246 U. S. 655, 38 S. Ct. 423, 62 L. Ed. 924, affirming United States v. Illinois Surety Co. (D. C.) 238 F. 840. There may be some differences between the Iowa and New York laws with respect to the dissolution of surety companies and the exact status of their receivers or liquidators or rehabilitators, but such differences, if they exist, do not appear in this case and the principle of the decision in United States v. Federal Surety Company, supra, seems to be applicable here.
The failure to give notice to creditors m case No. 5283 involves other considerations. In U. S. for Use of Alexander Bryant Co. v. New York Steam Fitting Co., 235 U. S. 327, 35 S. Ct. 108, 113, 59 L. Ed. 253, this provision of the statute was held to be “ |
4,140,271 | 3,628,546 | 1934-10-17 | United States District Court for the District of Maryland | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co. | United States ex rel. Pen Mar Co. v. J. L. Robinson Const. Co., 8 F. Supp. 620 (1934) | 1923-11-22 | United States District Court for the Eastern District of New York | United States ex rel. Ganford Co. v. Conners | United States ex rel. Ganford Co. v. Conners, 295 F. 521 (1923) | 3628546_1 | for at least three successive weeks, the last publication to be at least three months before the time limited therefor. | ” (Italics supplied.)
And the federal cases on the point both before and after this decision of the Supreme Court have quite uniformly held to the same effect. See United States v. United Surety Company (D. C.) 192 F. 992; United States v. Conners (D. C.) 295 F. 521; United States v. Scheurman (D. C.) 218 F. 915; United States for Benefit of R. I. Covering Co. v. James Miles & Son Co. (D. C.) 55 F.(2d) 249; Vermont Marble Co. v. National Surety Co., 213 F. 429 (C. C. A. 3). It is true that the objection based on the lack of notice in these cases proceeded from the contractor or his surety rather than from other creditors, but as the statutory provision was held by the Supreme Court to be not of the essence of jurisdiction and directory only, it would seem clear that the suit even in the absence of notice to other creditors, cannot be regarded as a nullity, especially in view of what the Supreme Court said in the Bryant Case. Literal compliance with the proviso about notice is in many cases impracticable and would be futile. Thus if no prior suit has been instituted a creditor may file the suit within a year from the date of completion and final settlement of the contract, but the published notice must be “ |
3,836,966 | 5,620,257 | 1899-01-09 | United States Court of Appeals for the Third Circuit | Barnes Cycle Co. v. Reed | Barnes Cycle Co. v. Reed, 91 F. 481 (1899) | 1838-01 | Supreme Court of the United States | Reynolds v. Douglass | Reynolds v. Douglass, 37 U.S. 497 (1838) | 5620257_0 | This notice need not he proved to have been given in writing, or in any particular form, but may be inferred by the jury from facts and circumstances which shall warrant such inference. | ’ ” This witness testified that, before the defendant made this remark, he (Phillips) had mentioned the plaintiff as one of the concerns to which the defendant was liable, and the amount of the indebtedness. The defendant held his judgment note until October 3, 1896, the third day after the maturity of the principal contract, and then entered judgment thereon, issued execution, and levied upon Schlaudecker’s entire stock in trade, which was subsequently sold by the sheriff under this execution. Moreover, it was testified that, shortly after the issuing of this execution, in the same month, the defendant took from Schlaudecker assignments of accounts and notes of the value of about $15,000, as further indemnity against liabilities he had incurred for Schlaudecker on four guaranties, including the one here in suit. Now, it is true that the defendant himself testified in contradiction of many of the statements of the plaintiff’s witnesses, and he was corroborated to some extent by another witness; but, still, the determination of what the facts were clearly was for the jury. The evidence, as a whole, we think, required the submission to the jury of the question of notice to the defendant of the plaintiff’s acceptance of the guaranty.
To hold a guarantor, notice of the acceptance of the guaranty need not be shown by direct proof, but may be inferred from circumstances. Brandt, Sur. § 204. His conduct and remarks may justify an inference of due notice. In Reynolds v. Douglass, 12 Pet. 497, 504. the supreme court of the United States said: “ |
2,184,156 | 12,043,962 | 1969-06-17 | United States Court of Appeals for the Ninth Circuit | Spillman v. United States | Spillman v. United States, 413 F.2d 527 (1969) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_1 | The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene ‘should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated.’ |
Shortly before the close of the Government’s case, and upon the representation of the Assistant United States Attorney that the further evidence to be presented could not connect defendant Cucitro with the 8mm film, the court directed a dismissal as to the defendant Cucitro on that count, Count Two of the indictment, which involved the 8mm film. At the close of all of the evidence, the defendants moved for directed verdicts' of acquittal which were denied.
Appellant contends:
1. That the memorandum letter circulated by the Department of Justice to the United States Attorneys has unofficially promulgated a policy of non-prosecution of offenders within a class which the appellant falls;
2. That since there is no evidence that the appellant intended that the material mailed be other than private or that the photographs be seen by others than themselves, the conviction must be vacated and the indictment dismissed;
3. That the only mailing by the appellant was the mailing of undeveloped film which is incapable of being obscene, lewd, lascivious, indecent, filthy, or vile;
4. That there was error in the trial court’s refusal to give co-defendant’s requested instruction Number 1 ;
5. That the defendant was deprived of due process of the law because the governmental employees (the postal inspectors) were not prosecuted for the mailing of the developed films; and
6. That there was insufficient evidence to allow a jury to determine whether there was the existence of a criminal conspiracy or not. The appellant pointed out that the United States Department of Justice circulated a memorandum, dated August 31, 1964, to all United States Attorneys which, to quote the United States Supreme Court in Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521, declares:
“The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene ‘should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated. |
2,049,934 | 12,043,962 | 1967-01-05 | United States Court of Appeals for the Ninth Circuit | Cox v. United States | Cox v. United States, 370 F.2d 563 (1967) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_1 | those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated. | PER CURIAM:
Appellant Cox was convicted of transmitting obscene material by mail, an offense defined by 18 U.S.C. § 1461. Appellant McGuire was convicted of aiding and abetting. 18 U.S.C. § 2.
One of the appellants lived in Pacoima, California, and the other in San Francisco, California. They became friendly through an exchange of correspond ence, and Cox gratuitously mailed to McGuire sealed envelopes containing photographs which are not denied to be obscene. There is no evidence that appellants intended that their correspondence be other than private or that the photographs be seen by others than themselves.
At about the time of oral argument, the Supreme Court announced its decision in Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521 (1966). The Solicitor General had advised the Court that following the conviction of the petitioners in Redmond, the Department of Justice had adopted and pursued a policy that persons exchanging private obscene correspondence should not be prosecuted save in “ |
2,049,934 | 12,043,962 | 1967-01-05 | United States Court of Appeals for the Ninth Circuit | Cox v. United States | Cox v. United States, 370 F.2d 563 (1967) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_0 | reverse this conviction, not because it violates the policy of the Justice Department, but because it violates the Con? stitution. | ” A minority of three Justices noted that it would “ |
2,034,745 | 12,043,962 | 1967-04-10 | United States Court of Appeals for the Eighth Circuit | Heath v. United States | Heath v. United States, 375 F.2d 521 (1967) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_1 | should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated. | HEANEY, Circuit Judge.
Appellant, Cecil Bailey Heath, with the advice of counsel and after a careful explanation of the charge by District Court Judge Oren Harris, entered a plea of guilty on May 23, 1966, to a charge of transmitting obscene material through the mails in violation of 18 U.S.C. § 1461. A three-year sentence was imposed by the court.
On June 20, 1966, the appellant, relying solely upon Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521 (1966) (decided the day the appellant plead guilty), filed a motion, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, asking the court to either vacate the judgment of conviction and dismiss the information or to suspend the sentence during good behavior. The court denied the motion, but modified the sentence to provide that the appellant would be eligible for parole after serving one year of the term. This is an appeal from the decision of the lower court denying the appellant’s motion. No question is raised as to the constitutionality of the statute as applied to private correspondence.
In Redmond, a husband and wife were convicted of violating the federal obscenity statute by having mailed undeveloped, and received through the mails, the developed film of each other posing in the nude. Their conviction was affirmed by the Sixth Circuit Court of Appeals, 355 F.2d 446. In his motion, the Solicitor General stated that prosecution for mailing private correspondence which is allegedly obscene “ |
2,120,978 | 12,043,962 | 1970-10-20 | United States Court of Appeals for the Second Circuit | United States v. Dellapia | United States v. Dellapia, 433 F.2d 1252 (1970) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_1 | those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated. |
34
. United States v. Reidel (S.D.Cal., filed June 8, 1970), cert. granted, 39 U.S.L.W. (1970), 400 U.S. 817, 91 S.Ct. 67, 27 L.Ed.2d 44 (unconstitutional to prohibit mailing of obscene matter to one who uses mails for commercial distribution to willing buyers who state they are adults) ; United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (C.D.Calif., filed January 27, 1970) (three-judge court), cert. granted, 400 U.S. 817, 91 S.Ct. 34, 27 L.Ed.2d 44 (1970) (unconstitutional to exclude from the United States obscene photographs imported for use by adults in the privacy of their own homes) ; Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.) (three-judge court), prob. juris, noted 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969) (holding unconstitutional state statute proscribing knowing possession of obscene material).
35
. Among previous judicial glosses upon the Comstock Act are the requirements:
(1) that the material not only be “obscene, lewd, [etc.],” but that it also have the effect of appealing to the beholder’s prurient interest and that it offend national standards of decency, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 483-486, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) (opinion of Harlan, J.) ; see also United States v. Klaw, 350 F.2d 155, 164 (2d Cir. 1965) (above limitations plus utter lack of redeeming social value) ;
(2) that the offensive material not be a “classic” work, e. g., Roth v. Goldman, 172 F.2d 788 (2d Cir.), cert. denied, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743 (1949).
A significant further narrowing of the statute results from the decision of the Justice Department to limit prosecutions to “ |
5,585,797 | 12,043,962 | 1971-02-10 | United States District Court for the Eastern District of Louisiana | United States v. New Orleans Book Mart, Inc. | United States v. New Orleans Book Mart, Inc., 328 F. Supp. 136 (1971) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_0 | not because [this conviction] violates the policy of the Justice Department, but because it violates the Constitution. | VOID FOR VAGUENESS
Defendants next assert unconstitutionality of the statutes themselves as violating the First, Fourth, Fifth and Sixth Amendments to the Constitution, because they forbid the doing of acts in terms so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application ; and because they set forth no standards and hence unnecessarily and broadly invade the right to Freedom of Speech protected by the First Amendment; because they lack a definition of what is obscene and because they are susceptible of sweeping and improper application by law enforcement officers.
In Roth, in 1957, the United States Supreme Court for the first time reviewed and affirmed a conviction under a related statute, 18 U.S.C. § 1461, dealing with the use of the mails to transport obscene materials. It upheld the constitutionality of that statute. Again in 1966, in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, the Court affirmed a conviction under the use of the mails statute without discussing its constitutionality. In United States v. Alpers, 1950, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457, the court upheld a conviction under the statute involved here without expressly considering its constitutionality. Justices Stewart, Black and Douglas concurred, “ |
3,423,125 | 12,043,962 | 1973-01-29 | United States District Court for the District of Columbia | Nader v. Kleindienst | Nader v. Kleindienst, 375 F. Supp. 1138 (1973) | 1966-05-23 | Supreme Court of the United States | Redmond v. United States | Redmond v. United States, 384 U.S. 264 (1966) | 12043962_1 | . . . confined to those cases which may fairly be characterized as aggravated. | A declaration that the Act was not enforced during the years before 1968, and upon which the statute of limitations has run, would serve no useful purpose since the Act has now been repealed, and the question is for all practical purposes now moot. Therefore, it is this 29th day of January, 1973,
Ordered, that the action be, and the same hereby is, dismissed for failure to state a claim upon which relief may be granted.
1
. 2 U.S.C. §§ 241-256.
2
. Plaintiffs request this relief under 18 U.S.C. § 3282. The FCPA was repealed by the Federal Election Campaign Act of 1971, 86 3.
3
. Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942,1952, 20 L.Ed.2d 947 (1968).
4
. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ; Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
5
. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ; Diggs v. Shultz, No. 72-1642, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972).
6
. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
7
. Diggs v. Shultz, No. 72-1642, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972).
8
. Id. at 465.
9
. Affirmed, Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965).
10
. Cert. denied. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 D.Ed.2d 700 (1965).
11
. The ground for the motion was that prosecution of the defendants violated the Department’s (Justice) policy, evidenced by a memorandum to all attorneys, that prosecution for mailing allegedly obscene materials by private persons be “... confined to those cases which may fairly be characterized as aggravated. |
613,312 | 8,895 | 1984-08-08 | United States Court of Appeals for the Seventh Circuit | Alliance to End Repression v. City of Chicago | Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (1984) | 1959-06-08 | Supreme Court of the United States | United States v. Atlantic Refining Co. | United States v. Atlantic Refining Co., 360 U.S. 19 (1959) | 8895_1 | the consent decree is not intended to permit____ | Notice, however, that this does not say “ |
3,525,339 | 8,895 | 1972-07-14 | United States District Court for the Eastern District of Missouri | United States v. Associated Credit Bureaus, Inc. | United States v. Associated Credit Bureaus, Inc., 345 F. Supp. 940 (1972) | 1959-06-08 | Supreme Court of the United States | United States v. Atlantic Refining Co. | United States v. Atlantic Refining Co., 360 U.S. 19 (1959) | 8895_1 | We merely hold that where the language of a consent decree in its normal meaning supports an interpretation; where that interpretation has been adhered to over many years by all the parties, including those government officials who drew up and administered the decree from the start (citation omitted); and where the trial court concludes that this interpretation is in fact the one the parties intended, we will not reject it simply because another reading might seem more consistent with the Government’s reasons for entering into the agreement in the first place. | It does not prohibit the members from using other organizations as sources of credit information.
If the 1933 decree were equally susceptible to the interpretations the government is now urging, the Court would not accept those interpretations. ACB’s “coupon rules” have been in existence since the establishment of ACB’s parent organization in 1906 and the wording of those rules has not been substantially changed since that time. The consent order of 1953 refers to the use of inter-bureau coupons. The government has continually worked closely with ACB and has relied on ACB to keep its members in compliance with the 1933 decree and the 1953 order. ACB used the “coupon rules” in 1950 to prevent its California member-bureaus from using mediums of exchange other than ACB coupons. The government contends in its brief that while the “coupon rules” had been in existence for an extended period of time it had never acquiesced in the use which ACB has recently made of the “coupon rules”. That use is simply the enforcement of the rules. Even if the government had never acquiesced in the enforcement of the rules this does not mean that the government has not acquiesced in the rules themselves. Section III of the 1933 decree provides in part:
“That the defendants shall forthwith abrogate and cancel all by-laws, rules, regulations, conditions, contracts, provisions or resolutions which suggest, authorize, encourage, permit or direct any of the acts and things hereinabove specifically enjoined * * * ft
If the government believed in 1933 that the “coupon rules” violated the 1933 decree they had an obligation to enforce the cancellation of those “coupon rules”. The fact that they did not must be considered an acquiescence in those rules.
“ |
7,850,922 | 8,895 | 1994-08-29 | United States District Court for the District of New Jersey | Educational Testing Service v. Katzman | Educational Testing Service v. Katzman, 157 F.R.D. 235 (1994) | 1959-06-08 | Supreme Court of the United States | United States v. Atlantic Refining Co. | United States v. Atlantic Refining Co., 360 U.S. 19 (1959) | 8895_2 | more nearly effectuate the basic purpose of the [Acts], | Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.
U.S. v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1970) (footnote omitted). Justice Marshall’s language makes clear that once the parties resolve a dispute by entering into a consent order, a court is limited to interpreting that agreement strictly according to its terms, and may not extrapolate from the order even if so doing would better vindicate the order’s spirit or purpose. See also id. at 683, 91 S.Ct. at 1758. See, e.g., Firefighters v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585-86, 81 L.Ed.2d 483 (1983) (quoting Armour & Co., 402 U.S. at 681-82, 91 S.Ct. at 1757-58); U.S. v. Atlantic Refining Co., 360 U.S. 19, 22-23, 79 S.Ct. 944, 946-47, 3 L.Ed.2d 1054 (1959) (refusing to reinterpret consent decree to limit dividends payable by common-carriers to shipper-owners, despite that such reinterpretation might “ |
10,518,426 | 8,895 | 1992-11-12 | United States Court of Appeals for the Sixth Circuit | Lorain NAACP v. Lorain Board of Education | Lorain NAACP v. Lorain Board of Education, 979 F.2d 1141 (1992) | 1959-06-08 | Supreme Court of the United States | United States v. Atlantic Refining Co. | United States v. Atlantic Refining Co., 360 U.S. 19 (1959) | 8895_0 | it does not warrant our substantially changing the terms of a decree to which the parties consented without any adjudication of the issues. | In United States v. Atlantic Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054 (1959), the Court observed that while a proposed interpretation of a consent decree might better effectuate the basic purposes of the statutes the government sought to enforce, “ |
3,928,601 | 1,418 | 1977-04-21 | United States District Court for the Western District of New York | United States v. Brozyna | United States v. Brozyna, 430 F. Supp. 213 (1977) | 1972-12-21 | United States Court of Appeals for the Eighth Circuit | United States v. Peplinski | United States v. Peplinski, 472 F.2d 84 (1972) | 1418_0 | in connection with the acquisition of a firearm |
On March 13, 1975, the grand jury returned a two-count indictment charging the defendant with using a false identification “ |
3,928,601 | 1,418 | 1977-04-21 | United States District Court for the Western District of New York | United States v. Brozyna | United States v. Brozyna, 430 F. Supp. 213 (1977) | 1972-12-21 | United States Court of Appeals for the Eighth Circuit | United States v. Peplinski | United States v. Peplinski, 472 F.2d 84 (1972) | 1418_0 | in connection with the acquisition of a firearm. |
On March 13, 1975, the grand jury returned a two-count indictment charging the defendant with using a false identification “in connection with the acquisition of a firearm” in violation of 18 U.S.C. §§ 922(a)(6) and 924(a), and with bail jumping in violation of 18 U.S.C. § 3150. Subsequently, the defendant was tried and the jury returned guilty verdicts on each count.
During trial I reserved decision on defendant’s motion to dismiss on the first count and, following trial, defendant moved for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, in the alternative, for a new trial pursuant to Rule 33. In passing on these motions, the evidence must be viewed in the light most favorable to the prosecution.
The pertinent facts may be quickly stated. On August 29, 1974, the defendant entered King’s Department Store in Buffalo, New York. After examining a shotgun, she told the clerk that she wanted to purchase it. She showed the clerk a New York State driver’s license and two credit cards purportedly identifying her as Mrs. Dorothy Bernys.
Count I of the indictment charges that she willfully furnished false identification “ |
3,928,601 | 1,418 | 1977-04-21 | United States District Court for the Western District of New York | United States v. Brozyna | United States v. Brozyna, 430 F. Supp. 213 (1977) | 1972-12-21 | United States Court of Appeals for the Eighth Circuit | United States v. Peplinski | United States v. Peplinski, 472 F.2d 84 (1972) | 1418_1 | in connection with the acquisition of | 415 U.S., at 820 [94 S.Ct., at 1267].
There is no question that in Huddleston, the Supreme Court indicated a willingness to interpret “acquisition” broadly; however, there is no authority expressed there to construe the word “acquisition” to include “attempted acquisition” which is a separately designated offense. United States v. Peplinski, 472 F.2d 84 (8th Cir. 1972), does not support the Government’s argument either. Even though the questionnaire was prepared a few days later, it was held to be “ |
3,928,601 | 1,418 | 1977-04-21 | United States District Court for the Western District of New York | United States v. Brozyna | United States v. Brozyna, 430 F. Supp. 213 (1977) | 1972-12-21 | United States Court of Appeals for the Eighth Circuit | United States v. Peplinski | United States v. Peplinski, 472 F.2d 84 (1972) | 1418_1 | in connection with the acquisition of. | Even though the questionnaire was prepared a few days later, it was held to be “in connection with the acquisition of” the firearm. However, Peplinski does not support the Government’s argument that acquisition also includes an attempted acquisition.
Next, the prosecutor argues that pursuant to Rule 31(c) of the Federal Rules of Criminal Procedure the defendant may be found guilty of an attempt to commit the offense charged. See discussion in 8A MOORE’S FEDERAL PRACTICE, ¶ 31.03, at 31-9 to 31-26 (2d Ed. 1965), and Simpson v. United States, 195 F.2d 721 [13 Alaska 635] (9th Cir. 1952). However, in cases like Simpson, the question of attempt was submitted to the jury. In this case, the Government insisted that the facts warranted a finding that the defendant was guilty of the offense charged in the indict ment. There was no request that the charge of an attempt be submitted to the jury. If the Government had sought such a request, it would have been appropriate under the circumstances. Berra v. United States, 351 U.S. 131, 134 [76 S.Ct. 685, 100 L.Ed. 1013] (1956). But it is necessary that the request be made beforehand. United States v. Whitaker [144 U.S.App.D.C. 344], 447 F.2d 314, 317 (1971).
Under these circumstances, where the statute clearly defines two crimes, one “in connection with the acquisition” and the other in connection with the “attempted acquisition,” it is necessary that the defendant know what position the prosecution is taking so that she may adequately prepare her defense. Perhaps there was an effort to expand the meaning of the verbiage “ |
1,377,185 | 302,284 | 1998-12-03 | United States District Court for the Southern District of Texas | Roberson v. Brassell | Roberson v. Brassell, 29 F. Supp. 2d 346 (1998) | 1997-08-08 | United States Court of Appeals for the Eighth Circuit | Williams v. Brimeyer | Williams v. Brimeyer, 122 F.3d 1093 (1997) | 302284_0 | applies to all hours worked in this case after the date of the passage of the Act | See Inmates of D.C. Jail v. Jackson, 158 F.3d 1357, 1358 (D.C.Cir.1998) (finding that “the attorney’s fees limitations in the PLRA apply to all work performed after the effective date of the Act”); Williams v. Brimeyer, 122 F.3d 1093, 1094 (8th Cir.1997) (holding that the PLRA “ |
11,594,515 | 302,284 | 1999-01-25 | United States Court of Appeals for the Eighth Circuit | Winters v. Sissel | Winters v. Sissel, 167 F.3d 413 (1999) | 1997-08-08 | United States Court of Appeals for the Eighth Circuit | Williams v. Brimeyer | Williams v. Brimeyer, 122 F.3d 1093 (1997) | 302284_0 | applies to all hours worked in this case after the date of the passage of the Act. | PER CURIAM.
Section 803(d) of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d) (“PLRA”), imposes limits on the hourly rate at which attorneys’ fees may be awarded to inmates who prevail in actions brought under 42 U.S.C. § 1983. Iowa inmate Jeff Winters commenced this § 1983 action before passage of the PLRA in April 1996. Judgment was entered in his favor in April 1997, and Winters applied for an award of attorneys’ fees.
This contention is foreclosed by our decision in Williams v. Brimeyer, 122 F.3d 1093, 1094 (8th Cir.1997), in which we held that the PLRA “ |
11,594,515 | 302,284 | 1999-01-25 | United States Court of Appeals for the Eighth Circuit | Winters v. Sissel | Winters v. Sissel, 167 F.3d 413 (1999) | 1997-08-08 | United States Court of Appeals for the Eighth Circuit | Williams v. Brimeyer | Williams v. Brimeyer, 122 F.3d 1093 (1997) | 302284_1 | that the PLRA, as applied in this manner, is within the power of Congress. | ” Williams established the law in this circuit, and we must follow it. Other circuits have adopted differing views on this question. In Inmates of D.C. Jail v. Jackson, 158 F.3d 1357, 1360 (D.C.Cir.1998), the court followed our decision in Williams. On the other hand, Madrid v. Gomez, 150 F.3d 1030, 1035 (9th Cir.1998), and Alexander S. v. Boyd, 113 F.3d. 1373, 1386 (4th Cir.1997), held that the PLRA limits all fees awarded after the date of enactment, whether incurred before or after that date. And on the other extreme, Hadix v. Johnson, 143 F.3d 246, 255-56 (6th Cir.1998), held that the PLRA does not apply to any fees awarded in § 1983 actions that were initially commenced before the statute’s enactment. Finally, Blissett v. Casey, 147 F.3d 218 (2d Cir.1998), held that the PLRA does not apply to fees incurred pre-enactment but awarded post-enactment, but the court did not address the question of fees incurred post-enactment. We conclude this contention was expressly rejected in Williams when we held “ |
3,701,778 | 8,198 | 1902-05-05 | United States Court of Appeals for the Ninth Circuit | Lilienthal v. McCormick | Lilienthal v. McCormick, 117 F. 89 (1902) | 1883-11-12 | Supreme Court of the United States | New Orleans National Banking Ass'n v. Adams | New Orleans National Banking Ass'n v. Adams, 109 U.S. 211 (1883) | 8198_0 | We are of the opinion that this contention is not well founded. While it may be conceded that no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act, or it cannot be construed to be a mortgage. | We shall not attempt to do this. In Association v. Adams, 109 U. S. 211, 214. 3 Sup. Ct. 161, 27 L. Ed. 910, cited by complainants, it was insisted that the bank was entitled to the proceeds of a certain sale because the agreement of the parties constituted a mortgage, etc.
“We are of the opinion that this contention is not well founded. |
938,787 | 5,706,389 | 1936-01-20 | United States Court of Appeals for the Fifth Circuit | Regents of University System of Georgia v. Page | Regents of University System of Georgia v. Page, 81 F.2d 577 (1936) | 1922-08-07 | United States Court of Appeals for the Ninth Circuit | Pool v. Walsh | Pool v. Walsh, 282 F. 620 (1922) | 5706389_1 | be enforced through the secret findings and summary action of executive officers. | If the tax was due by appellant or it was legally required to collect the same, it is the duty of the collecting agent to pay it over; if the admissions were immune from federal taxation, there was no valid agency and certainly no obligation to pay anything over to the appellee. We find nothing in the conduct of the Board of Regents to estop it from standing upon its constitutional rights and asserting the invalidity - or inapplicability of the alleged tax.
Let us now look at the remedy pursued by, and inquire what remedy is available to, appellee. If his contention is correct, the appellant voluntarily acted as agent in the collection of the tax and became the debtor of the United States. The money collected does not belong to the gov- eminent; the title to it is in appellee. Nevertheless, treating the amounts claimed to be due as a tax, the Collector of Internal Revenue prepared and filed returns on behalf of appellant’s athletic departments and, thereafter, admissions taxes in the respective amounts were duly assessed against them. Appellee then gave notice to and made demand of the respective departments for the payment of the admissions taxes so assessed on account thereof. As the appellant is not the taxpayer but merely an alleged debtor for money had and received (United States v. Johnston, 268 U.S. 220, 226, 45 S.Ct. 496, 69 L.Ed. 925), if the appellee is correct in his contention that the appellant voluntarily acted as agent in the collection of the admission taxes, the question immediately presents itself whether the collection of a debt against one other than a taxpayer may “ |
918,731 | 5,706,389 | 1932-06-13 | United States Court of Appeals for the Fourth Circuit | Hubbard Inv. Co. v. Brast | Hubbard Inv. Co. v. Brast, 59 F.2d 709 (1932) | 1922-08-07 | United States Court of Appeals for the Ninth Circuit | Pool v. Walsh | Pool v. Walsh, 282 F. 620 (1922) | 5706389_0 | assessment or collection of any tax. | With respect to. the acquisition of the trust property, he stated that the investment company had financed the purchase by the use of a stock certificate and that it had paid certain relatively small installments of interest and an assessment of $500. He produced the checks covering the interest payments and the assessment, but did not produce the note given for the inoney to make the initial payment and did not remember whether it had been signed bji the investment company or by himself. He admitted that the amount due for the purchase money was rapidly reduced as a result of sales made by the trustees. So far as the testimony shows, the company paid nothing for the interest in the property at the time of its acquisition and has paid nothing since except interest amounting to approximately $175 and the $500 assessment. A number of other matters, such as the income tax returns of Hubbard and of the investment company, were covered by his testimony; but we deem them immaterial.
So far as the interest 'of creditors is concerned, while Hubbard.testified that both he and the investment company had lost money and that neither was able to meet outstanding obligations, there is no evidence that upon a final adjustment of accounts and equities between Hubbard and the company, either the company or its creditors would be injured as a result of the sale of the property under the distraint warrant. No receiver for the company.has been appointed, and no creditor of the company has intervened or asked relief at the hands of the court. That section forbids the maintenance of a suit, the purpose of which is to restrain the “ |
11,689,126 | 11,960,986 | 1998-06-01 | United States District Court for the Southern District of Texas | Sabino v. Reno | Sabino v. Reno, 8 F. Supp. 2d 622 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241 (a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(I). | The phrase “shall not be subject to review by any court” applies directly to deportation orders, raising questions of what level of judicial review in deportation proceedings is required by the Constitution. See, e.g., Mbiya, 930 F.Supp. at 612; Yesil, 958 F.Supp. at 839. See also Williams, 114 F.3d at 82. Its prohibition on “review by any court” applies to “ |
191,473 | 11,960,986 | 1998-05-11 | United States Court of Appeals for the Fifth Circuit | Lerma de Garcia v. IMMIGRATION & NATURALIZATION SERVICE | Lerma de Garcia v. IMMIGRATION & NATURALIZATION SERVICE, 141 F.3d 215 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_4 | completely forecloses our jurisdiction to review decisions of the BIA | The Immigration Judge (“IJ”) deemed Petitioner’s application abandoned and ordered her deportation.
Petitioner filed a motion to reopen, in order to apply for relief under section 212(c). On December 5, 1994, the IJ denied the motion on the grounds that petitioner had failed to demonstrate exceptional circumstances.
Petitioner filed a second motion to reopen, which the IJ denied on February 10, 1995. The BIA affirmed the IJ’s decision on June 8, 1995. Petitioner filed a third motion to reopen, which the IJ denied on August 31, 1995. Petitioner appealed the denial to the BIA, which dismissed the appeal on February 12,1996.
Petitioner filed a fourth motion to reopen, this time directly with the BIA On April 29, 1997, a single board member, acting on behalf of the entire board, denied this appeal. The BIA found section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 1277, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996, Pub.L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009, 626-27, rendered her statutorily ineligible for the relief she sought.
Petitioner filed this appeal, claiming (1) that the BIA’s final order is void, because it was issued by a single boardmember; and (2) that § 440(d) is unconstitutional. In a related proceeding, petitioner filed for writ of habeas corpus seeking review of the Final Order of Deportation in the District Court for the Southern District of Texas, Brownsville Division.
DISCUSSION
IIRIRA § 309(c)(4)(G), 110 Stat. 3009, 626-27, contains the provisional standards for criminal deportees whose deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996.
We have previously held that this language “ |
191,473 | 11,960,986 | 1998-05-11 | United States Court of Appeals for the Fifth Circuit | Lerma de Garcia v. IMMIGRATION & NATURALIZATION SERVICE | Lerma de Garcia v. IMMIGRATION & NATURALIZATION SERVICE, 141 F.3d 215 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | criminal deportees retain some opportunity to apply for writs of habeas corpus. | ’ ” Id. (quoting Carlson v. London, 342 U.S. 524, 537, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952)). The court, however, added:
[T]hat Congress’s. power to grant or restrict judicial review in deportation proceedings is subject to judicial intervention under the Constitution does not imply necessarily that a federal court of appeals such as this one may retain jurisdiction over a petition raising constitutional claims. This court is a court created by statute, and courts created by statute have no jurisdiction other than that which has been conferred upon them by statute.
Id. at 669 (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850)). The court concluded that as long as other avenues of judicial review remain available to resident aliens, it did not need to address the difficult question whether Congress may limit the jurisdiction of the lower courts to hear constitutional claims. See id. at 668-69. We have already followed our sister circuits in noting that “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | by reason of having committed a criminal offense | Instead, the language of INA § 106(a)(10) conditioned its restriction on judicial review on there being “an alien” “who is deportable” “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | against an alien who is deportable by reason of having committed ... any offense covered by [INA] section 241(a)(2)(A)(ii) for which both predicate offenses are covered by [INA] section 241(a)(2)(A)(i). | The Fifth Circuit not ed that under INA § 106(a)(10), “unamended by IIRIRA,” judicial review was precluded if deportation was based on two convictions for a crime involving moral turpitude only if both of the convictions occurred within five years of when the alien entered the United States. Because one of Mr. Anwar’s criminal convictions occurred more than five years after he entered the United States, the Fifth Circuit concluded that the jurisdictional bar of INA § 106(a)(10) did not apply. Accordingly, the Fifth Circuit proceeded to review the alien’s petition.
Despite its lack of extensive discussion, the Anwar decision illustrates the same concept followed in Yang. The Fifth Circuit did not simply decline to exercise jurisdiction based on the INS’ asserted grounds for deportation. Instead, the Fifth Circuit conducted its own review of the allegations supporting deportation to determine whether these allegations prohibited further judicial review. Finding that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the Fifth Circuit proceeded to entertain the alien’s claims.
Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the aspect of the Yang decision holding that the court of appeals can exercise jurisdiction in order to determine whether a jurisdictional bar precludes further jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th Cir.1997). As a “threshold matter,” the Okoro court examined its own jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA, which precluded judicial review of any final deportation order “against an alien who is deportable by reason of having committed... any offense covered by [INA] section 241(a)(2)(A)(ii) for which both predicate offenses are covered by [INA] section 241(a)(2)(A)(i). |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | by reason of having committed a criminal offense covered | First, Congress clearly has the power to repeal § 2241 habeas jurisdiction over immigration decisions in the inferior courts and to provide for judicial review of immigration decisions exclusively under a different jurisdictional statute, to wit: the INA. Congress has the power to remove all immigration decisions from the jurisdiction of the district courts, which is exactly what Congress has done. Second, in enacting the INA, Congress has the power to outline the mode and timing of judicial review under the INA, to wit: only by direct petition for review in the court of appeals and only after a final removal order.
Third, Congress has the power to mandate detention and removal of aliens with serious criminal convictions and to expedite their removal by limiting judicial review over their detention and removal to the fullest extent allowed under the Constitution. This is why Congress enacted, within the INA’s judicial-review scheme, the additional restriction on judicial review found in INA § 242(a)(2)(C).
While INA § 242(a)(2)(C) significantly restricts Richardson’s judicial review, we disagree with Richardson’s contention that this INA provision leaves him without any judicial review in violation of the Suspension Clause. Courts of appeal retain jurisdiction under INA § 242(a)(2)(C) to deter mine whether the jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192; Okoro v. INS, 125 F.3d at 925; Anwar, 116 F.3d at 144; Coronado-Durazo, 123 F.3d at 1323. But cf., Berehe, 114 F.3d at 161. INA § 242(a)(2)(C) does not state that judicial review is prohibited if the Attorney General finds that the person being removed is an alien and removable for a reason covered in INA § 242(a)(2)(C). Under the language of INA § 242(a)(2)(C), in order to decide whether the jurisdictional bar applies, courts must determine that the removal order: (1) “is against an alien” (2) “who is removable” (3) “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | by reason of having committed a criminal offense covered | If review of such questions under INA § 242(a)(2)(C) does not satisfy the Suspension Clause and INA § 242(a)(2)(C) is held to be unconstitutional, then at worst Richardson will be left with the INA’s underlying general judicial review of “all questions of law and fact” available under INA §§ 242(b)(2) and 242(b)(9) in the court of appeals. Such judicial review clearly satisfies the Suspension Clause.
IIRIRA expressly provides for the sever-ability of its numerous provisions. Therefore, even if a court of appeals were to find INA § 242(a)(2)(C) does not satisfy the Suspension Clause, this does not mean that INA § 242(g)’s repeal of § 2241 habeas is unconstitutional. What it means is that without INA § 242(a)(2)(C)’s specific additional limitations on judicial review under the INA, Richardson then could avail himself of the general judicial review provided under INA §§ 242(b)(2) and 242(b)(9). Thus, Richardson’s concerns at most boil down to whether INA § 242(a)(2)(C) is unconstitutional, and not whether INA § 242(g)’s repeal of § 2241 is constitutional. IIRIRA mandates that constitutional claims about the INA’s provisions be made in only one place and one time: in the court of appeals and after a final removal order.
We pause to observe that Richardson’s removal order is based on his having a cocaine-trafficking conviction, which is deemed an aggravated felony conviction under the INA and is a basis for both inadmissibility and deportation under the INA. Making sure that the BIA record establishes the jurisdictional facts under INA § 242(a)(2)(C) — that the criminal alien: (1) is “an alien,” not a citizen; (2) “who is removable”; (3) “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | any offense covered by section 241 (a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i) | Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir.1998). Auguste did not address judicial review under § 2241 habeas because Auguste, a non-criminal alien in custody, filed a habeas petition in the district court pursuant to only INA § 106(a)(10) which provided for habeas review under the old INA. The AEDPA repealed the habeas review in INA § 106(a)(10) and replaced it with the version of INA § 106(a)(10) that restricted judicial review of deportation orders against criminal aliens. Thus, whether INA § 242(g) repealed § 2241 was not discussed in Auguste.
79
. 8 U.S.C. § 1252(b)(9) (Supp.1998).
80
. 8 U.S.C. § 1252(d)(1) (Supp.1998). IIRIRA imposes other timing requirements to expedite judicial review. The petition for direct review in the court of appeals must be filed 30 days after a final order, as opposed to 90 days under the pre-IIRIRA version of the INA. Compare INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (Supp.1998), with former INA § 106a(a)(l), 8 U.S.C. § 1105a(a)(l) (Supp. 1996).
81
. 8 U.S.C. § 1252(a)(2)(C) (Supp.1998). INA § 212(a)(2) is codified in 8 U.S.C. § 1182(a)(2). INA § 237(a)(2) is codified in 8 U.S.C. § 1227(a)(2) (Supp.1998).
82
. 8 U.S.C. § 1182(a)(2) (Supp.1998).
83
. See footnotes 74 and 176 in order to compare INA § 106(a)(10), as amended by the AEDPA, with INA § 242(a)(2)(C), as amended by IIRIRA. First, IIRIRA § 306(d) eliminated the phrase “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | any offense covered by section 241 (a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241 (a)(2)(A)(i). | First, IIRIRA § 306(d) eliminated the phrase “any offense covered by section 241 (a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)” and replaced it with the phrase " |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | without regard to the date of their commission | As did the Ninth Circuit in Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir.1997), the Fifth Circuit in Anwar applied the pre-IIRIRA version of INA § 106(a)(10). 116 F.3d at 144. However, unlike in Coronado-Durazo, the fact that the pre-IIRIRA version of INA § 106(a)(10) applied in Anwar meant that the court could exercise jurisdiction over the alien’s petition for review. Specifically, the court in Anwar noted that prior to IIRIRA, INA § 106(a)(10) precluded the judicial review of a deportation order of an alien who was deportable under INA § 212(a)(2)(A)(ii) (i.e. for multiple criminal convictions of crimes involving moral turpitude) only if both "predicate offenses” were also covered by INA § 212(a)(2)(A)(i). Id. An alien was deportable under INA § 212(a)(2)(A)(i) only if the alien had been convicted of a crime involving moral turpitude which crime occurred within five years of when the alien entered the United States and for which the alien was sentenced to confinement for one year or more. Id. Because one of An-war's crimes had occurred more than five years after he entered the United States, the court concluded that his multiple convictions did not fall under INA § 212(a)(2)(A)(i) and thus did not fall under the jurisdictional bar of the pre-IIRI-RA INA § 106(a)(10). Id.
We note that the Fifth Circuit has recognized an inconsistency between an earlier Fifth Circuit decision, Pichardo v. INS, 104 F.3d 756 (5th Cir.1997), and a portion of the Anwar decision that is not at issue in this case. In Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that included IIRIRA's first amendment to this section — the amendment adding the phrase “ |
11,814,520 | 11,960,986 | 1998-12-22 | United States Court of Appeals for the Eleventh Circuit | Richardson v. Reno | Richardson v. Reno, 162 F.3d 1338 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | criminal deportees retain some opportunity to apply for writs of habeas corpus | But compare Chow v. INS, 113 F.3d 659, 667 (7th Cir.1997) (deciding jurisdictional bar itself, in INA § 106(a)(10) enacted by AEDPA § 440(a), did not violate Article III or Due Process Clause but declining to find sufficient jurisdiction under that jurisdictional bar to consider the alien's other constitutional claims that procedures in the BIA proceedings violated his constitutional rights because Chow still had other potential avenues for relief remaining open for those constitutional claims such as a writ pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 1651 or Art. I, § 9 cl.2); Turkhan v. INS, 123 F.3d 487, 489 (7th Cir.1997) (following Chow, and noting other avenues of habeas review were still available and therefore INA § 106(a)(10) is unlike other "true door-closing statutes — [where] the constitutional claims... would be reviewed either pursuant to the statutes at issue or not at all”); Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir.1998) (holding INA § 106(a)(10) forecloses all judicial review including constitutional claims in the context raised as " |
11,626,870 | 11,960,986 | 1999-03-29 | United States District Court for the Western District of Louisiana | Naidoo v. Immigration & Naturalization Service | Naidoo v. Immigration & Naturalization Service, 39 F. Supp. 2d 755 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | criminal deportees retain some opportunity to apply for writs of habeas corpus. | Lerma de Garcia 141 F.3d at 217, quoting Chow v. INS, 113 F.3d 659, 668 (7th Cir.1997); Rusu, 999 F.Supp. at 1212. As discussed above, Congress has amended ‘NA to limit federal court review of immigration matters by repealing the statutory authority by which federal district courts previously reviewed immigration matters.’ Further, the Suspension Clause of the Constitution does not specifically invest this court with jurisdiction to consider Petitioner’s claims. Thus, without a specific grant of jurisdiction, this court lacks jurisdiction to consider Petitioner’s claims.
The court is cognizant of the Fifth Circuit’s statement that “ |
11,582,492 | 11,960,986 | 1999-06-22 | United States District Court for the District of New Jersey | Then v. Immigration & Naturalization Service | Then v. Immigration & Naturalization Service, 58 F. Supp. 2d 422 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in ... [Sjection 241 (a)(2)(A)(iii), (B), (C), or (D) .... | See IIRIRA § 309(c)(4)(G), 110 Stat. 3009-546 (setting forth transitional rules which provide, inter alia, "there shall be no appeal of any discretionary decision under... [Sjection 212(c)” and “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in... [Sjection 241 (a)(2)(A)(iii), (B), (C), or (D)....”); see also Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997); Jorge v. Hart, No. 97-CV-1119, 1997 WL 531309, at *3 (S.D.N.Y. 28 Aug. 1997). |
11,570,090 | 11,960,986 | 1999-09-15 | United States Court of Appeals for the Fifth Circuit | Requena-Rodriguez v. Pasquarell | Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_3 | commence before ... April 1, 1997, and conclude more than thirty days after [IIRIRA’s] passage on September 30, 1996. | The district court, after “carefully reviewing] those objections and the entire file,” found the magistrate judge’s recommendation to be “essentially correct” and denied Requena’s habeas petition.
This court reviews de novo the district court’s legal conclusions on jurisdiction and on the merits. See United States v. Nutall, 180 F.3d 182, 188 (5th Cir.1999) (constitutional challenges); United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 288 (5th Cir.1999) (subject-matter jurisdiction); Graham v. Johnson, 168 F.3d 762, 772 (5th Cir.1999) (retroactivity).
II. Which Rules Apply? The transitional rules apply to deportation or exclusion proceedings that “commence before... April 1, 1997, and conclude more than thirty days after [IIRIRA’s] passage on September 30, 1996. |
11,570,090 | 11,960,986 | 1999-09-15 | United States Court of Appeals for the Fifth Circuit | Requena-Rodriguez v. Pasquarell | Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii).... | Fiallo v. Bell, 430 U.S. 787, 794, 793, 97 S.Ct. 1473, 1479, 1478, 52 L.Ed.2d 50 (1977) (internal quotation omitted). Requena’s equal protection rights were not violated by AEDPA § 440(d)’s restriction of § 212(c) relief.
VI. Conclusion
This decision does not determine whether any habeas jurisdiction remains under IIRIRA’s permanent provisions — though we note that congressional intent to limit jurisdiction is expressed more forcefully in the permanent than in the transitional rules. Nor does this case decide whether the new § 1252(g) repeals habeas jurisdiction for those transitional cases to which it does apply in the wake of American-Arab, We conclude only that under the transitional rules, habeas jurisdiction lies to consider constitutional and statutory claims that cannot be heard in this court on direct review.
On the merits, AEDPA § 440(d)’s limits on § 212(c) relief can be triggered by convictions that predate AEDPA, and its distinction between deportation and exclusion proceedings does not violate the equal protection component of the Fifth Amendment Due Process Clause. Accordingly, the district court’s judgment is AFFIRMED.
AFFIRMED.
1
. AEDPA, Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996). The limitations on discretionary relief imposed by AEDPA § 440(d) were short-lived, as § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (''IIRIRA”) repealed the underlying provision for discretionary relief. See IIRIRA, Pub.L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009-546, - 597. As discussed below, in Part II, Reque-na's case falls into IIRIRA’s transitional rules, making the subsequent elimination of § 212(c) relief inapplicable to this case.
2
. In this opinion, citations to the 1994 United States Code are used to refer to relevant former versions of INA provisions that have since been amended, redesignated, or deleted.
3
. " |
11,570,090 | 11,960,986 | 1999-09-15 | United States Court of Appeals for the Fifth Circuit | Requena-Rodriguez v. Pasquarell | Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | criminal deportees retain some opportunity to apply for writs of habeas corpus | Id., at 285 (citing Parra, 172 F.3d at 957).
13
. See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1144-46 (10th Cir.1999); Shah, 184 F.3d at 722 (8th Cir.); Mayers v. U.S. Dep’t of INS, 175 F.3d 1289, 1297 (11th Cir.1999). See Lerma de Garcia, 141 F.3d at 217 (repeating notations in prior cases that " |
11,575,685 | 11,960,986 | 1999-05-25 | United States District Court for the Southern District of Texas | Berlanga v. Reno | Berlanga v. Reno, 56 F. Supp. 2d 751 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | [t]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [certain code sections]. | See IIRI-RA §§ 306(d), 671(e)(3), 671(e)(4) (revising materially subsection (a)(1) to § 1105a); and 308(g)(10)(H) (amending AEDPA § 440(a) and IIRIRA § 306(d)), Pub.L. 104-208, 110 Stat. 3009. Section 306(d) of the IIRIRA amended the new AEDPA by eliminating any time restrictions on the predicate offenses that may be cause for deportability. See 110 Stat. 3009-612, amending 8 U.S.C. § 1182; see also Historical Statutory Notes to 1996 Amendments (West Supp.1998). In addition and most significant to this case, IIRIRA § 306 amended the INA by imposing a severe restriction on judicial review of BIA final actions concerning aliens who are convicted of criminal offenses. See 8 U.S.C. § 1105a(a)(10); IIRIRA § 306(a)(2), amending 8 U.S.C. § 1252(a)(2)(C); see also Sabino, 8 F.Supp.2d at 625.
The IIRIRA actually contains two sets of provisions, the “permanent” provisions that apply to removal proceedings commenced after April 1, 1997, and the “transitional” provisions that apply to deportation proceedings commenced before April 1, 1997 in which final administrative orders were [not] issued prior to October 30, 1996. See IIRIRA § 309(c)(1), 110 Stat. 3009-625, amended by Act of Oct. 11, 1996, Pub.L. 104-302, 110 Stat. 3656, 3657; see also Olvera, 20 F.Supp.2d at 1063 and n. 3 (citing IIRIRA § 309(c)(1)); Eyoum v. INS, 125 F.3d 889 (5th Cir.1997); Lerma de Garcia v. INS, 141 F.3d 215 (5th Cir. 1998) (deportation order became final on April 29, 1997); Nguyen v. INS, 117 F.3d 206 (5th Cir.1997) (deportation order became final on May 19, 1997); Ibrik v. INS, 108 F.3d 596, 597 (5th Cir.1997); Sabino, 8 F.Supp.2d at 632, 633.
As to jurisdiction of this or any court, the transitional rules provide that “ |
11,575,685 | 11,960,986 | 1999-05-25 | United States District Court for the Southern District of Texas | Berlanga v. Reno | Berlanga v. Reno, 56 F. Supp. 2d 751 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | criminal deportees retain some opportunity to apply for writs of habeas corpus | ”); Hincapie-Nieto, 92 F.3d at 31 (concluding that § 440(a)'s repeal of direct review is constitutional on the basis of representations by the INS that some avenue of judicial relief remains available for core constitutional concerns); Roister, 101 F.3d at 791 (same). Cf. Duldulao, 90 F.3d at 400 n. 4 (upholding § 440(a)’s elimination of direct appeals but noting that the availability of habeas relief was not an issue); Boston-Boilers, 106 F.3d at 354-55 (upholding constitutionality of § 440(a) without mentioning issue of remaining habeas relief). This view has been re-affirmed in dicta issued by other panels of the Fifth Circuit in Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997) (" |
11,575,685 | 11,960,986 | 1999-05-25 | United States District Court for the Southern District of Texas | Berlanga v. Reno | Berlanga v. Reno, 56 F. Supp. 2d 751 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [specified sections] | Furthermore, the Lerma de Garcia court characterized the jurisdictional issue before it to be whether there was an exception to the jurisdictional bar set forth in the IIRIRA § 309(c)(4)(G), for claims alleging "substantial constitutional violations.” The Lerma de Garcia court focused on the language of § 309(c)(4)(G) (" |
11,582,642 | 11,960,986 | 1999-06-29 | United States District Court for the District of New Jersey | Caballos de Leon v. Reno | Caballos de Leon v. Reno, 58 F. Supp. 2d 463 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_2 | differ[] only trivially from that of AEDPA § 440(d).... | See Catney v. INS, 178 F.3d at 192 (3d Cir.1999); Morel v. INS, 90 F.3d 833, 837 (3d Cir.) ("Morel I"), vacated on other grounds, 144 F.3d 248 (3d Cir. 1998); Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93; Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976); Matter of Silva, Int.Dec. 2532 (BIA 1976) (adopting Francis nationwide). Ceballos, as mentioned, entered the United States in 1977; it appears he has obtained more than seven years of lawful domicile. See Petition at ¶¶ 3, 8.
7
. A copy of the 5 June 1997 Decision of the Immigration Judge is attached to the Answer as Exhibit 4.
8
. Section 440 of the AEDPA was amended by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (the “IIRI-RA”), Pub.L. No. 104-208, Div. C., § 309(c), 110 Stat. 3009, 626-27 (30 September 1996). The IIRIRA repealed Section 212(c), U.S.C. § 1182(c). The repeal of Section 212(c), as previously amended by Section 440(d), does not affect cases commenced before the effective date of the IIRIRA (1 April 1997), in which a final order of deportation was filed after its enactment date (30 October 1996). See Catney, 178 F.3d at 192; see also Hall v. INS, 167 F.3d 852, 855 n. 3 (4th Cir.1999). The transitional rules of the IIRIRA " |
11,582,642 | 11,960,986 | 1999-06-29 | United States District Court for the District of New Jersey | Caballos de Leon v. Reno | Caballos de Leon v. Reno, 58 F. Supp. 2d 463 (1999) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in ... [Sjection 241 (a)(2)(A)(iii), (B), (C), or (D).... | See IIRIRA § 309(c)(4)(G), 110 Stat. 3009-546 (setting forth transitional rules which provide, inter alia, "there shall be no appeal of any discretionary decision under... [Sjection 212(c)” and "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in... [Sjection 241 (a)(2)(A)(iii), (B), (C), or (D).... ”); see also Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997); Jorge v. Hart, No. 97-CIV-1119, 1997 WL 531309, at *3 (S.D.N.Y. 28 Aug. 1997). |
11,587,145 | 11,960,986 | 1998-12-14 | United States District Court for the District of New Jersey | Then v. Immigration & Naturalization Service | Then v. Immigration & Naturalization Service, 37 F. Supp. 2d 346 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_2 | differ! ] only trivially from that of AEDPA § 440(d) .... |
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General....
8 U.S.C. § 1182(c) (1994 ed.)
While Section 212(c) appeared on its face to apply only to aliens who seek to re-enter the country, it has been extended to apply to deportation proceedings as well. See Morel v. INS, 90 F.3d 833, 837 (3d Cir.1996), vacated on other grounds, 144 F.3d 248 (3d Cir.1998); Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93; Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976); Matter of Silva, Int.Dec. 2532 (BIA 1976) (adopting Francis nationwide). The Petitioner entered the United States in 1983; it appears he has obtained more than seven years of lawful domicile. See Petition at ¶ 7.
4
. As discussed below, Section 440 of the AED-PA was amended by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (the "IIRIRA"), Pub.L. No. 104-208, Div.C., § 309(c), 110 Stat. 3009, 626-27 (30 September 1996). Specifically, the IIRIRA repealed Section 212(c), 8 U.S.C. § 1182(c). The repeal of Section 212(c), as previously amended by Section 440(d), does not affect cases where the final order of deportation was entered more than thirty days after the enactment date of the IIRIRA (30 September 1996) and before its effective date (1 April 1997). The transitional rules of the IIRIRA “differ! ] only trivially from that of AEDPA § 440(d)....” |
11,587,145 | 11,960,986 | 1998-12-14 | United States District Court for the District of New Jersey | Then v. Immigration & Naturalization Service | Then v. Immigration & Naturalization Service, 37 F. Supp. 2d 346 (1998) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [Sjection 241 (a)(2)(A)(iii), (B), (C), or (D).... | See IIRIRA § 309(c)(4)(G), 110 Stat. 3009-546 (setting forth transitional rules which provide, inter alia, "there shall be no appeal of any discretionary decision under ®27 [Sjection 212(c)” and “ |
11,456,282 | 11,960,986 | 2000-02-24 | United States Court of Appeals for the Fifth Circuit | Max-George v. Reno | Max-George v. Reno, 205 F.3d 194 (2000) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_0 | some opportunity to apply for a writ of habeas corpus | In 1988, Congress amended the Immigration and Nationality Act by establishing that conviction of an aggravated felony was a ground for deportation, Pub.L. 100-690, 102 Stat. 4470, 4471 (1988), and specified that this change would apply to all convictions occurring after the date of enactment, November 18, 1988. Pub.L. 100-690, 102 Stat. 4181, 4470 (1988). At the time, however, theft was not included in the definition of “aggravated felony.” Therefore, at the time Max-George committed his crime, and at the time he was convicted, he could not have been classified as a deportable "aggravated felon.”
In 1994, Congress added theft offenses punished with five years’ imprisonment to the list of aggravated felonies. Pub.L. 103-416, 108 Stat. 4305, 4322 (1994). In 1996, as part of AEDPA, Congress again amended the definition of "aggravated felony,” this time to apply to theft offenses punishable by at least one year's imprisonment. Pub.L. 104-208, 110 Stat. 3009, 3009-627 (1996). Congress there specified that the list of offenses would apply to convictions entered both before and after the enactment. Pub.L. 104-208, 110 Stat. 3009, 3009-628. Accordingly, while Max-George's offense did not fall under the 1988 or 1994 classification of "aggravated felon,” the 1996 amendment classifies him as an "aggravated felon”
7
. We recognize that, under the transitional rules, we have held that jurisdiction over constitutional claims challenging the validity of BIA procedures was precluded on direct review. In those cases, we noted that the potential lack of an avenue to review constitutional claims was mitigated by the possibility of “ |
11,451,695 | 11,960,986 | 2000-04-17 | United States Court of Appeals for the Fifth Circuit | Tuan Anh Nguyen v. Immigration & Naturalization Service | Tuan Anh Nguyen v. Immigration & Naturalization Service, 208 F.3d 528 (2000) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_4 | completely forecloses our jurisdiction to review decisions of the BIA. |
While his appeal was pending, Mr. Bou-lais instituted a paternity proceeding in a Texas district court. In February 1998, based on DNA testing results Boulais obtained an “Order of Parentage” adjudging that he is the father of Nguyen. Since the BIA’s briefing schedule called for submission of Nguyen’s brief prior to the completion of DNA testing and the issuance of the paternity decree, Nguyen submitted an initial brief to the BIA outlining his United States’ citizenship argument, but did not include the DNA evidence to support his claim. On April 15, 1998 he filed a supplemental brief which included the relevant evidence. On June 2, 1998, the BIA dismissed Nguyen’s appeal.
On June 26, 1998 Nguyen filed a Motion to Reconsider with the BIA which has not to date been adjudicated. On July 2, 1998 Mr. Boulais and Nguyen filed a habeas petition in the United States District Court, challenging the BIA’s deportation order and denial of relief from deportation. The petitioners also filed a request for declaratory judgment as to the citizenship issue. Because of the multi-layered requests in the district court action, the magistrate judge agreed to hold that matter in abeyance pending this court’s decision. The INS has filed a motion to dismiss this appeal for lack of jurisdiction, and this court ruled that the motion should be carried with the case.
DISCUSSION
The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996, Pub.L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009, 626-27, contains the standards for criminal deportees whose deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996..,
It has been established that this language “ |
11,429,784 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 310 F.3d 825 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_3 | whose deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996. | It amends the Immigration and Nationality Act (“INA”) in dozens of important but technical ways. Most importantly for this case, IIRIRA dramatically restricts judicial review of final orders of removal.
Because IIRIRA is complicated, and its jurisdictional sections especially so, we first examine the relevant sections and the INS’s seemingly well-crafted argument against jurisdiction. We then explain why Renteria-Gonzalez’s conviction of transporting illegal aliens within the United States was not an “aggravated felony” conviction under pre-IIRIRA immigration law that, in the case of an “aggravated felony,” would strip this court of jurisdiction to review a petition for review.
A.
IIRIRA has a transitional rule and a permanent rule for judicial review of a final order of removal. The transitional rule appears only in IIRIRA § 309(c)(4)(G), not in the United States Code. The permanent rule appears as 8 U.S.C. § 1252(a)(2)(C). The transitional and permanent rules are nearly identical. The transitional rule states that
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)® of such Act (as so in effect).
IIRIRA § 309(c)(4)(G).
Aside from syntactical differences, the permanent rule is identical, except that it omits the three parentheticals. See 8 U.S.C. § 1252(a)(2)(C). As we explain, infra part II.B.2, these parentheticals make all the difference in this case. It applies to any alien “ |
11,429,784 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 310 F.3d 825 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | as in effect as of the date of the enactment of [IIRIRA]. | We therefore must apply the definition of “aggravated felony” in effect on September 30, 1996, to determine whether IIRIRA § 309(c)(4)(G) withdraws our jurisdiction in this ease.
Congress has amended the definition of “aggravated felony” in the INA four times since Renteria-Gonzalez’s conviction. Unlike IIRIRA, however, most of these amendments were not retroactive. Instead, each amendment applied only to convictions adjudged on or after the date of that respective amendment, so superseded definitions still govern past convictions. Thus, we look to the codified definition of “aggravated felony” at the time of Renteria-Gonzalez’s conviction.
The definition of “aggravated felony” in October 1989 included only murder, drug trafficking, weapons trafficking, or an attempt to commit these crimes. Thus, Renteria-Gon-zalez’s § 1324(a) conviction for transporting illegal aliens did not qualify as an “aggravated felony” under the INA “ |
11,429,784 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 310 F.3d 825 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_4 | completely forecloses our jurisdiction to review decisions of the [BIA]. | INTCA § 222(b). Thus, the older definition of "aggravated felony” still governed Renteria-Gonzalez's conviction, notwithstanding the INTCA, AEDPA, and IIR-IRA amendments.
Even if the AEDPA amendments controlled under IIRIRA § 309(c)(4)(G), however, our conclusion would be no different. AEDPA included a § 1324(a) conviction in the definition of "aggravated felony” only if the alien received a sentence of imprisonment of at least five years, AEDPA § 440(e)(3), but Renteria-Gonzalez received a six-month sentence. As we observed in Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997), IIRIRA § 309(c)(4)(G) " |
9,371,366 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 322 F.3d 804 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_3 | whose deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996. | It amends the Immigration and Nationality Act (“INA”) in dozens of important but technical ways. Most importantly for this case, IIRIRA dramatically restricts judicial review of final orders of removal.
Because IIRIRA is complicated, and its jurisdictional sections especially so, we first examine the relevant sections and the INS’s seemingly well-crafted argument against jurisdiction. We then explain why Renteria-Gonzalez’s conviction of transporting illegal aliens within the United States was not an “aggravated felony” conviction under pre-IIRIRA immigration law that, in the case of an “aggravated felony,” would strip this court of jurisdiction to review a petition for review.
A.
IIRIRA has a transitional rule and a permanent rule for judicial review of a final order of removal. The transitional rule appears only in IIRIRA § 309(c)(4)(G), not in the United States Code. The permanent rule appears as 8 U.S.C. § 1252(a)(2)(C). The transitional and permanent rules are nearly identical. The transitional rule states that
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)© of such Act (as so in effect).
IIRIRA § 309(c)(4)(G).
Aside from syntactical differences, the permanent rule is identical, except that it omits the three parentheticals. See 8 U.S.C. § 1252(a)(2)(C). As we explain, infra part II.B.2, these parentheticals make all the difference in this case. It applies to any alien “ |
9,371,366 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 322 F.3d 804 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_1 | as in effect as of the date of the enactment of [IIRIRA]. | We therefore must apply the definition of “aggravated felony” in effect on September 30, 1996, to determine whether IIRIRA § 309(c)(4)(G) withdraws our jurisdiction in this case.
Congress has amended the definition of “aggravated felony” in the INA four times since Renteria-Gonzalez’s conviction. Unlike IIRIRA, however, most of these amendments were not retroactive. Instead, each amendment applied only to convictions adjudged on or after the date of that respective amendment, so superseded definitions still govern past convictions. Thus, we look to the codified definition of “aggravated felony” at the time of Renteria-Gonzalez’s conviction.
The definition of “aggravated felony” in October 1989 included only murder, drug trafficking, weapons trafficking, or an attempt to commit these crimes. Thus, Renteria-Gon-zalez’s § 1324(a) conviction for transporting illegal aliens did not qualify as an “aggravated felony” under the INA “ |
9,371,366 | 11,960,986 | 2002-11-11 | United States Court of Appeals for the Fifth Circuit | Renteria-Gonzalez v. Immigration & Naturalization Service | Renteria-Gonzalez v. Immigration & Naturalization Service, 322 F.3d 804 (2002) | 1997-07-02 | United States Court of Appeals for the Fifth Circuit | Nguyen v. Immigration & Naturalization Service | Nguyen v. Immigration & Naturalization Service, 117 F.3d 206 (1997) | 11960986_4 | completely forecloses our jurisdiction to review decisions of the [BIA]. | INTCA § 222(b). Thus, the older definition of "aggravated felony” still governed Renteria-Gonzalez’s conviction, notwithstanding the INTCA, AEDPA, and IIR-IRA amendments.
Even if the AEDPA amendments controlled under IIRIRA § 309(c)(4)(G), however, our conclusion would be no different. AEDPA included a § 1324(a) conviction in the definition of "aggravated felony” only if the alien received a sentence of imprisonment of at least five years, AEDPA § 440(e)(3), but Renteria-Gonzalez received a six-month sentence.
14
. As we observed in Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997), IIRIRA § 309(c)(4)(G) " |
3,794,361 | 553,580 | 2010-10-22 | United States Court of Appeals for the Fifth Circuit | Gene & Gene, LLC v. Biopay, LLC | Gene & Gene, LLC v. Biopay, LLC, 624 F.3d 698 (2010) | 1975-06-06 | United States Court of Appeals for the Fifth Circuit | Luhrsen v. Vantage Steamship Corp. | Luhrsen v. Vantage Steamship Corp., 514 F.2d 105 (1975) | 553580_0 | there is a complete lack of any showing that the ‘newly discovered’ evidence could not have been discovered by proper diligence. | Gene contends that it “now knows” that “an objective methodology exists to identify all class members who gave their consent” as a result of the disclosure of the database in its native format. But the screenshot printouts of the FileMaker Pro database produced in 2006 show every field needed to determine whether a particular contact may have consented to receive a fax. While Gene repeatedly characterizes the database as containing fields that allow it to offer generalized proof of consent, the screenshot printouts show the same fields. The FileMaker Pro database and its search capabilities certainly allow for a more user-friendly and less time-consuming investigation into the circumstances regarding BioPay’s faxes to its Louisiana contacts. Although the record does not reflect the exact number of screenshot printouts disclosed in 2006, “ |
6,745,056 | 11,975,546 | 1911-07-31 | United States District Court for the Eastern District of South Carolina | The Ester | The Ester, 190 F. 216 (1911) | 1870-12 | United States District Court for the Eastern District of New York | The Elwin Kreplin | The Elwin Kreplin, 8 F. Cas. 592 (1870) | 11975546_1 | The consuls, vice consuls or commercial agents, or the'persons duly authorized to supply their places, shall have the right as such to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities unless the conduct of the crews, or of the captain should disturb the order or tranquility of the country; or the said consuls, vice consuls or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It’ is however understood, that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country. | ”
“The consuls, vice consuls or commercial agents, or the'persons duly authorized to supply their places, shall have the right as such to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities unless the conduct of the crews, or of the captain should disturb the order or tranquility of the country; or the said consuls, vice consuls or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. |
3,894,993 | 11,975,546 | 1915-05-19 | United States District Court for the Southern District of Georgia | The Albergen | The Albergen, 223 F. 443 (1915) | 1870-12 | United States District Court for the Eastern District of New York | The Elwin Kreplin | The Elwin Kreplin, 8 F. Cas. 592 (1870) | 11975546_0 | to all cases of admiralty and maritime jurisdiction, |
In other words, the position of the libelant in this case is that by the-express terms of paragraph 1 of section 2 of article 3 of the Constitution of the United States the judicial power of the District Courts of the United States extends “ |
11,836,361 | 377,765 | 1998-05-01 | United States District Court for the Central District of California | California Franchise Tax Board v. Jackson (In re Jackson) | California Franchise Tax Board v. Jackson (In re Jackson), 220 B.R. 683 (1998) | 1997-05-13 | United States Bankruptcy Appellate Panel for the Ninth Circuit | California, Franchise Tax Board v. Rowley (In re Rowley) | California, Franchise Tax Board v. Rowley (In re Rowley), 208 B.R. 942 (1997) | 377765_0 | We fully agree with the reasoning and holding in Jerauld_ | In re Jerauld, 208 B.R. 183 (9th Cir. BAP 1997), appeal docketed, No. 97-55872 (9th Cir.1997); In re Rowley, 208 B.R. 942, 944 (9th Cir. BAP 1997) (“ |
4,137,860 | 4,258 | 1934-11-16 | United States District Court for the Southern District of Florida | Bankers’ Trust Co. v. Florida East Coast Ry. Co. | Bankers’ Trust Co. v. Florida East Coast Ry. Co., 8 F. Supp. 874 (1934) | 1922-08-18 | United States District Court for the Northern District of Georgia | Haverty Furniture Co. v. United States | Haverty Furniture Co. v. United States, 286 F. 985 (1922) | 4258_0 | and for each renewal of the same | ” The language which follows “ |
3,674,389 | 869,178 | 2007-10-10 | United States Bankruptcy Appellate Panel for the Tenth Circuit | In re Union Home & Industrial, Inc. | In re Union Home & Industrial, Inc., 375 B.R. 912 (2007) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | [ajfter an estate is fully administered and the court has discharged the trustee, the court shall close the case. | ” Pierce, 487 U.S. at 558, 108 S.Ct. 2541.
Fortunately, the Supreme Court’s decision in Pierce does provide us with certain factors to consider in determining the appropriate standard of review. These factors include: (1) the language and structure of the governing statute; (2) whether one judicial actor is better positioned than another to decide the issue in question; (3) the impracticability of formulating a rale of decision for the matter in issue; and (4) whether the consequences flowing from the trial court’s decision favor a more intense level of review. Id. at 559-63, 108 S.Ct. 2541. Consideration of these factors in this case leads us to conclude that the bankruptcy court’s decision on a final decree should be reviewed under an “abuse of discretion” standard. Entry of a final decree is governed by 11 U.S.C. § 350(a), which provides that “ |
3,674,389 | 869,178 | 2007-10-10 | United States Bankruptcy Appellate Panel for the Tenth Circuit | In re Union Home & Industrial, Inc. | In re Union Home & Industrial, Inc., 375 B.R. 912 (2007) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_0 | [ajfter an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on a motion of a party in interest, shall enter a final decree closing the case. | Similarly, Federal Rule of Bankruptcy Procedure 3022 provides that “ |
4,131,541 | 869,178 | 2009-11-24 | United States Bankruptcy Appellate Panel for the Eighth Circuit | Shotkoski v. Fokkena (In re Shotkoski) | Shotkoski v. Fokkena (In re Shotkoski), 420 B.R. 479 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | [ajffcer an estate is fully administered and the court has discharged the trustee, the court shall close the case. | ” Id.
Hoffman v. Bullmore (In re Nat’l Warranty Ins. Risk Retention Group), 384 F.3d 959, 962 (8th Cir.2004).
DISCUSSION
We begin with a review of the applicable Code sections and Rules. Section 1141(d)(5) of the Bankruptcy Code describes the circumstances under which an individual Chapter 11 debtor may receive a discharge.
11 U.S.C. § 350(a) provides that “ |
4,131,541 | 869,178 | 2009-11-24 | United States Bankruptcy Appellate Panel for the Eighth Circuit | Shotkoski v. Fokkena (In re Shotkoski) | Shotkoski v. Fokkena (In re Shotkoski), 420 B.R. 479 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_0 | [ajfter an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case. | Bankruptcy Rule 3022 implements § 350(a) in the Chapter 11 context by providing “ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | Title 11 U.S.C. § 350(a) instructs that after an estate is fully administered and the court has discharged the trustee, the court shall close the case. |
While the motion to reopen the original Kliegl case was pending, DLNI moved in this court pursuant to Fed.R.Bankr.Proc. 1014(b) to transfer venue of the Maine case to this district. A pre-hearing order (Docket Doc. # 230) was issued directing the parties to frame issues raised by DLNI’s two motions. The motions to reopen and to transfer venue were then granted, leaving the sanctions issues raised by DLNI as the remaining issue to be addressed. At a hearing on the motions to reopen and transfer venue, Gott-lieb was disqualified from representing Kliegl due to the fact that the Maine Chapter 7 petition had by then been filed and the Maine Chapter 7 trustee had decided not take a position on DLNI’s transfer motion. (Order dated 1/7/98, Docket Doc. # 256; Tr. 11/24/97 Tr. at 44-66.)
At the conclusion of those hearings, we concluded that sanctions were warranted without articulating the grounds or reason for that conclusion and without having made a determination as to who would be subject to which sanctions. This decision addresses those open matters.
II. DISCUSSION
A. Sanctions Under Fed.R.Bankr.P. 9011
The test for the imposition of Rule 9011 sanctions is an objective one. In re HBA East Inc., 101 B.R. 411 (Bankr. E.D.N.Y.1989); In re Dubrowsky, 206 B.R. 30 (Bankr.E.D.N.Y.1997). DLNI has the burden of proof on the appropriateness of sanctions. Fed.R.Bankr.P. 9011. See e.g. In re Standfield, 152 B.R. 528, 534 (Bankr. N.D.Ill.1993); In re Cedar Falls Hotel Properties Limited Partnership, 102 B.R. 1009, 1014 (Bankr.N.D.Iowa). Once a prima facie case has been made, the burden shifts to the party from whom the sanction is sought to show a legitimate purpose for the filing.
Final Decree & Standards
“ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_0 | after an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case. | Fed.R.Bankr.P. 3022 provides that “ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_3 | [e]ntry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed | (In re IDC Services Inc.), 1998 WL 547085, No. 97 Civ 3081(TPG), 93 B 45992(SMB) (S.D.N.Y. Aug. 28, 1998) (“the Second Circuit has not defined the term ‘fully administered’ ”), and since the entry of a final decree is essentially an administrative task, any analysis or enunciation of the standards applicable to the final decree process must, of necessity, be limited largely to hornbooks and the Advisory Committee Note (Note) that accompanies the Rule. The most compelling comment in the Note advises that: “ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_1 | [t]he court should not keep the case open only because of the possibility that the court’s jurisdiction may be invoked : in the future. A final decree closing the case after the estate is fully administered does not deprive the court of jurisdiction to enforce or interpret its own orders and does not prevent the court from reopening the case for cause pursuant to § 350(b) of the Code. | The most compelling comment in the Note advises that: “[e]ntry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed” and further that
, “[t]he court should not keep the case open only because of the possibility that the court’s jurisdiction may be invoked : in the future. |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_0 | Final Decree in Chapter 11 Reorganization Case. |
This omission is very significant. Section 350 is entitled “Closing and Reopening cases. Fed.R.Bankr.P. 3022 is entitled “ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | .. after an estate is fully administered ... | In defending his application, Gottlieb relies on case law that utilizes “substantial consummation” as an aide in determining compliance with the “fully administered” standard of § 350(a) and Rule 3022 but he does not adequately explain his failure to seek out, find and then analyze the appro priate statute or rule, or Advisory Note’s comments or case law pertinent to his application. His assertion that substantial consummation is the only standard for obtaining a final decree runs afoul of Rule 901 l’s reasonable inquiry standard; it is simply not warranted by law. See Ground Systems, Inc. v. Albert (In re Ground Systems, Inc.), 213 B.R. 1016, 1018 (9th Cir. BAP 1997) (explaining that “fully administered” and “substantial consummation” are not interchangeable). The only reasonable conclusion that can be drawn from this is either that Gottlieb, laboring under the misapprehension that he was sufficiently familiar with all pertinent statutes, rules, and precedents concluded that any reference thereto would be superfluous, or else that he knew the standard he was enunciating to be erroneous and misleading. For purposes of this portion of our decision, it makes little difference which alternative becomes our finding. Either falls within the mandate for sanctions contained in Rule 9011.
b. Failure to Notify Court of Debtor’s Circumstances
Gottlieb was aware of Debtor’s perilous condition from his long experience with the Kliegl reorganization, yet he chose not to disclose this to the court. While one of the motives in seeking the decree may have been to remove from Kliegl the “stigma” of Chapter 11, clearly it was not the only, or even the primary one. In signing and submitting the first, unsuccessful, application for a final decree seeking a closing of the case at a time when the fee application of DLNI was still sub judice, Gottlieb violated the provisions of 11 U.S.C. § 350(a) which provides that the court shall close a case “.. after an estate is fully administered...” (Emphasis supplied.) |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_4 | a court of the United States; | This will be done in three stages: 1) is the bankruptcy court “ |
11,533,995 | 869,178 | 1999-09-09 | United States Bankruptcy Court for the Eastern District of New York | In re Kliegl Bros. Universal Elec. Stage Lighting | In re Kliegl Bros. Universal Elec. Stage Lighting, 238 B.R. 531 (1999) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_4 | a court of the United States | This will be done in three stages: 1) is the bankruptcy court “ |
5,675,927 | 869,178 | 2009-03-04 | United States Bankruptcy Court for the Northern District of Indiana | In re Johnson | In re Johnson, 402 B.R. 851 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | the court shall close the case | Nonetheless, the similarities in the two chapters do not make them identical and there continue to be important differences between them: differences which counsel against adopting the U.S. Trustee’s position that cases should remain open until the plan payments have been completed.
The primary weakness in the U.S. Trustee’s position is the potentially unlimited duration of an individual debtor’s Chapter 11 plan. Although this debtor’s plan will only last for five years, and some plans may be completed in a matter of months, see, In re Ball, 2008 WL 2223865 (Bankr.W.D.W.Va.2008), it is easy to imagine a Chapter 11 plan that could last for decades. All it would take for that to happen is for a debtor to have a 20 to 30 year home mortgage (something that is not at all unusual) and for the confirmed plan to provide that the mortgage debt will be paid according to its terms. While the provisions of Chapter 13 easily accommodate such long term obligations, see, 11 U.S.C. §§ 1322(b)(5), 1329(c), the provisions of Chapter 11 do not. In Chapter 11 the payments under such a plan would not be completed, and the debtor would not be entitled to a discharge, until the mortgage debt was fully satisfied — 20 to 30 years hence. The court finds it difficult to believe that Congress would prohibit Chapter 11 debtors from modifying claims secured by their homes, 11 U.S.C. § 1123(b)(5), and, by doing so, effectively require their cases to remain open for the entire term of the mortgage. Such a proposition may sound a bit ridiculous, but it does illustrate why a bright-line, no-closing-until-payments-are-complete, rule, although appealing and easy to apply, is not practical and why there must, instead, be some mechanism which will allow these cases to be closed before payments are complete. Section 350(a), which applies to cases under all chapters of the Bankruptcy Code, provides that “ |
5,675,927 | 869,178 | 2009-03-04 | United States Bankruptcy Court for the Northern District of Indiana | In re Johnson | In re Johnson, 402 B.R. 851 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_2 | after an estate is fully administered and the court has discharged the trustee. | Section 350(a), which applies to cases under all chapters of the Bankruptcy Code, provides that “the court shall close the case” “ |
5,675,927 | 869,178 | 2009-03-04 | United States Bankruptcy Court for the Northern District of Indiana | In re Johnson | In re Johnson, 402 B.R. 851 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_0 | After an estate is fully administered in a chapter 11 reorganization case, the court ... shall enter a final decree closing the case. | Here there is no trustee to discharge, so the only question is whether the estate can be considered “fully administered. While Rule 3022 says little more than that, see, Fed. R. Bankr.P. Rule 3022 (“After an estate is fully administered in a chapter 11 reorganization case, the court... shall enter a final decree closing the case. |
5,675,927 | 869,178 | 2009-03-04 | United States Bankruptcy Court for the Northern District of Indiana | In re Johnson | In re Johnson, 402 B.R. 851 (2009) | 1997-03-07 | United States Bankruptcy Court for the Eastern District of Kentucky | In re Jay Bee Enterprises, Inc. | In re Jay Bee Enterprises, Inc., 207 B.R. 536 (1997) | 869178_1 | The court should not keep the case open only because of the possibility that the court’s jurisdiction may be invoked in the future. |
The nature of these considerations calls for a flexible, case-by-case evaluation of a number of procedural and practical factors. In re Union Home & Industrial, Inc., 375 B.R. 912, 917 (10th Cir. BAP 2007). In this case, they persuade the court that the estate should be considered fully administered.
Although the debtor has not completed the plan payments, that does not prevent a case from being fully administered. Neither should the fact that the debtor has not received, and is not yet eligible to receive, a discharge. Section 350(a) focuses on the condition of the estate, not the presence or absence of a discharge. Corporations never receive a discharge under Chapter 7, 11 U.S.C. § 727(a)(1), and there are many cases where an individual debtor is not eligible to receive a discharge because it failed to complete the required post-petition financial management education which is a prerequisite for their discharge. See, 11 U.S.C. § 727(a)(ll). If discharging the debtor were a requirement for closing, these cases would have to remain open; yet all of them are easily closed without a second thought. The order confirming this debtor’s plan has become final, there was no deposit to distribute, any property the plan contemplates transferring has been transferred or otherwise disposed of, the reorganized debtor has begun to manage his affairs, payments to creditors have commenced, the plan has been substantially consummated, and all outstanding motions, adversary proceedings, and contested matters (save this one) have been resolved. All that remains to be done is for the debtor to perform his plan and receive a discharge, or for the debtor to fail and someone then seek conversion or dismissal of the case. Fed. R. Bankr.P. 3022, Advisory Committee Note (1991) (“ |
57,545 | 11,955,908 | 1984-02-23 | United States Court of Appeals for the Seventh Circuit | Prairie Central Railway Co. v. Interstate Commerce Commission | Prairie Central Railway Co. v. Interstate Commerce Commission, 728 F.2d 907 (1984) | 1983-09-15 | United States Court of Appeals for the Seventh Circuit | Cisco Cooperative Grain Co. v. Interstate Commerce Commission | Cisco Cooperative Grain Co. v. Interstate Commerce Commission, 717 F.2d 401 (1983) | 11955908_0 | a reasonable interpretation of the statute. | Prairie Central has never contended that Illinois Central failed to meet the filing and publication requirements. Accordingly, the Commission granted Illinois Central’s motions to strike Prairie Central’s notices of intent to purchase.
Prairie Central has petitioned this court for review to annul the Commission decisions which granted Illinois Central’s motions to strike. Prairie Central relies upon the same argument advanced before the Commission: that the filing of a notice of intent to purchase the lines indefeasibly invoked the jurisdiction of the Commission. Consequently, according to Prairie Central, Illinois Central’s subsequent amendment of its system diagram map did not preclude the finalization of the Commission’s jurisdiction.
II. THE CISCO CASE
This court recently decided the case of Cisco Cooperative Grain Co. v. Interstate Commerce Commission, 717 F.2d 401 (7th Cir.1983). In Cisco, Illinois Central had listed several railroad lines in category 1, for abandonment, on its system diagram map. After Cisco and Prairie Central filed notices of intent to purchase the lines, but before they could file an application to purchase because of the ninety-day waiting period, Illinois Central filed applications to abandon. Under its regulatory program then in effect, the Commission decided that, because Illinois Central’s application to abandon preceded any application to purchase, the Commission’s jurisdiction never vested. Despite the subsequent revocation, discussed below, of the regulation that required ninety days to elapse between the notice of intent to purchase and the application to purchase, the court held that the regulation was both a prerequisite to Commission jurisdiction and “ |
57,545 | 11,955,908 | 1984-02-23 | United States Court of Appeals for the Seventh Circuit | Prairie Central Railway Co. v. Interstate Commerce Commission | Prairie Central Railway Co. v. Interstate Commerce Commission, 728 F.2d 907 (1984) | 1983-09-15 | United States Court of Appeals for the Seventh Circuit | Cisco Cooperative Grain Co. v. Interstate Commerce Commission | Cisco Cooperative Grain Co. v. Interstate Commerce Commission, 717 F.2d 401 (1983) | 11955908_1 | or any required preliminary filing with respect to such application | Thus, the Commission’s jurisdiction now vests whenever a railroad line is in category 1 on a system diagram map and there is an application to purchase “ |
57,545 | 11,955,908 | 1984-02-23 | United States Court of Appeals for the Seventh Circuit | Prairie Central Railway Co. v. Interstate Commerce Commission | Prairie Central Railway Co. v. Interstate Commerce Commission, 728 F.2d 907 (1984) | 1983-09-15 | United States Court of Appeals for the Seventh Circuit | Cisco Cooperative Grain Co. v. Interstate Commerce Commission | Cisco Cooperative Grain Co. v. Interstate Commerce Commission, 717 F.2d 401 (1983) | 11955908_2 | read literally, the statutory requirement of removal from the carrier’s system diagram map could only occur when the carrier actually abandoned a line and ceased to operate it. | Thus, the Commission’s jurisdiction now vests whenever a railroad line is in category 1 on a system diagram map and there is an application to purchase “or any required preliminary filing with respect to such application” filed before the owner of the lines files an application to abandon. 49 U.S.C. § 10910(b)(l)(A)(ii).
If the amendment applied to the present case, then Prairie Central’s notices of intent to purchase would have vested jurisdiction in the Commission, and the Commission decision would be erroneous. The amendment, however, is inapplicable to this controversy. Congress provided that the amendment to section 10910(b)(l)(A)(ii)
shall be effective with respect to any application or preliminary finding with respect to which the Commission has made no final decision before May 1, 1982, except that such amendment shall not affect any line which has been removed from the carrier’s system diagram map before the date of the enactment of this Act [Jan. 14, 1983].
Rail Safety and Service Improvement of 1982, Pub.Law No. 97-468, § 506(b), 96 Stat. 2543 (1983). Although Illinois Central removed the disputed lines from category 1 on its system diagram map prior to May 1, 1982, there was no final Commission decision in this case until after that date. We must decide whether the change in status from category 1 to category 5 was effective to “remove” the lines from Illinois Central’s system diagram map within the meaning of the retroactivity provision of the statutory amendment. Although it was unnecessary to the decision in Cisco, this court stated that, “ |
57,545 | 11,955,908 | 1984-02-23 | United States Court of Appeals for the Seventh Circuit | Prairie Central Railway Co. v. Interstate Commerce Commission | Prairie Central Railway Co. v. Interstate Commerce Commission, 728 F.2d 907 (1984) | 1983-09-15 | United States Court of Appeals for the Seventh Circuit | Cisco Cooperative Grain Co. v. Interstate Commerce Commission | Cisco Cooperative Grain Co. v. Interstate Commerce Commission, 717 F.2d 401 (1983) | 11955908_2 | removal from the system diagram map | 717 F.2d at 405. A footnote indicates, however, that the court did not de cide whether “ |
1,111,648 | 616,202 | 1975-08-18 | United States Temporary Emergency Court of Appeals | Spinetti v. Atlantic Richfield Co. | Spinetti v. Atlantic Richfield Co., 522 F.2d 1401 (1975) | 1975-06-20 | United States Temporary Emergency Court of Appeals | Gulf Oil Corp. v. Federal Energy Administration | Gulf Oil Corp. v. Federal Energy Administration, 521 F.2d 810 (1975) | 616202_0 | [S]ection 211(d)(2) of the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, which defines our appellate jurisdiction, does not permit an appeal of right to this court from an order granting or denying a preliminary injunction. | ” (3 CCH Energy Management at p. 26,175.) “ |
974,966 | 616,202 | 1976-10-29 | United States Temporary Emergency Court of Appeals | Spinetti v. Atlantic Richfield Co. | Spinetti v. Atlantic Richfield Co., 552 F.2d 927 (1976) | 1975-06-20 | United States Temporary Emergency Court of Appeals | Gulf Oil Corp. v. Federal Energy Administration | Gulf Oil Corp. v. Federal Energy Administration, 521 F.2d 810 (1975) | 616202_0 | [S]ection 211(d)(2) of the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, which defines our appellate jurisdiction, does not permit an appeal of right to this court from an order granting or denying a preliminary injunction. | Under FRAP 5, to appeal an interlocutory order certified by the district court pursuant to § 1292(b), a petition for permission to appeal must be filed with the clerk of the court of appeals within 10 days after the entry of the order. The time for filing a petition for permission to appeal may not be enlarged under FRAP 26(b).
The notice of appeal filed by plaintiffs in TECA No. 9-35, on July 28, 1976, may not be construed as a substitute for the petition for permission to appeal required by FRAP 5. Numerous courts have so held and have required strict compliance with provisions of § 1292(b) and FRAP 5. See In re La Providencia Development Corp., 515 F.2d 94 (1st Cir. 1975); Hanson v. Hunt Oil Company, 488 F.2d 70 (8th Cir. 1973); Alabama Lab. Coun., P.E.U., Loc. No. 1279 v. State of Alabama, 453 F.2d 922 (5th Cir. 1972); Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6th Cir. 1970); Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3rd Cir. 1958). In addition, under FRAP 5(d), a notice of appeal is unnecessary where the court of appeals grants the petitioners permission to appeal.
Contrary to this court’s decisions in Exxon Corp. v. Federal Energy Administration, 516 F.2d 1397 (Em.App.1975); Gulf Oil Corp. v. F. E. A., 521 F.2d 810 (Em.App.1975); and Spinetti v. Atlantic Richfield Co., 522 F.2d 1401, 1403 (Em.App.1975), appellants assert that the TECA must accept a § 1292(b) certification as an appeal of right.App.1975), which we repeated in Spinetti v. Atlantic Richfield Co., 522 F.2d 1401, 1404 (Em.App.1975), that “ |
10,527,887 | 1,310,349 | 1988-08-15 | United States Court of Appeals for the Seventh Circuit | Harrison v. Commissioner | Harrison v. Commissioner, 854 F.2d 263 (1988) | 1988-02-09 | United States Court of Appeals for the Sixth Circuit | Mearkle v. Commissioner | Mearkle v. Commissioner, 838 F.2d 880 (1988) | 1310349_2 | which he knew, or should have known, was patently invalid | ” Id. at 836.
Although the Harrisons apparently did not refuse to extend the statute of limitations, the Tax Court found that the IRS did not receive their consent form. Therefore, the government acted reasonably in attempting to preserve its right to conduct a full investigation before making a final determination on whether it should allow the Harrisons’ deduction.
The Harrisons suggest that Mearkle v. Commissioner, 838 F.2d 880 (6th Cir.1988), supports their position that the IRS cannot arbitrarily issue a notice of deficiency and determine the facts later. We disagree. In Mearkle, the Commissioner relied on a proposed regulation in disallowing the taxpayers’ deduction for a home office. The underlying statute limited home office deductions to “gross income” derived from the business conducted out of the home office. The proposed regulation purported to define gross income as a net figure derived after subtracting some business expenses, a definition that eliminated the deduction for the taxpayers. The taxpayers filed a petition for redetermination of the deficiency. The Sixth Circuit found that the Commissioner’s continued reliance on a proposed regulation “ |
10,527,887 | 1,310,349 | 1988-08-15 | United States Court of Appeals for the Seventh Circuit | Harrison v. Commissioner | Harrison v. Commissioner, 854 F.2d 263 (1988) | 1988-02-09 | United States Court of Appeals for the Sixth Circuit | Mearkle v. Commissioner | Mearkle v. Commissioner, 838 F.2d 880 (1988) | 1310349_0 | establishes that the position of the United States in the civil proceeding was not substantially justified. | CONCLUSION
The Harrisons have failed to demonstrate that the IRS took an unreasonable position either before or during litigation of their claim. Therefore, we affirm the Tax Court’s denial of litigation costs to the Har-risons under section 7430.
Affirmed.
1
. The IRS would no longer be able to assess a deficiency against a partner based on an uncompleted partnership audit. 26 U.S.C. § 6225.
2
. At the time the Harrisons filed their petition, section 7430 stated in pertinent part as follows:
(a) In general. — In the case of any civil proceeding which is—
(1) brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, and
(2) brought in a court of the United States (including the Tax Court and the United States Claims Court),
the prevailing party may be awarded a judgment for reasonable litigation costs incurred in such proceeding.
(c) Definitions. — For purposes of this section—
(2) Prevailing party.—
(A) In general. — The term “prevailing party” means any party to any proceeding described in subsection (a) (other than the United States or any creditor of the taxpayer involved) which—
(i) establishes that the position of the United States in the civil proceeding was unreasonable, and
(ii)(I) has substantially prevailed with respect to the amount in controversy, or
(II) has substantially prevailed with respect to the most significant issue or set of issues presented.
(B) Determination as to prevailing party.— Any determination under subparagraph (A) as to whether a party is a prevailing party shall be made—
(i) by the court, or
(ii) by agreement of the parties. The current version of section 7430 defines a prevailing party as one that “ |
7,412,625 | 1,310,349 | 1995-06-20 | United States Court of Appeals for the Fifth Circuit | Nalle v. Commissioner | Nalle v. Commissioner, 55 F.3d 189 (1995) | 1988-02-09 | United States Court of Appeals for the Sixth Circuit | Mearkle v. Commissioner | Mearkle v. Commissioner, 838 F.2d 880 (1988) | 1310349_2 | the Commissioner cannot be said to have reasonably relied upon a proposed regulation which he knew, or should have known, was patently invalid | Accordingly, while the Commissioner’s use of legislative history may have been " 'the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends,'” Nalle I, 997 F.2d at 1137 (quoting Conroy v. Aniskoff,-U.S.-,-, 113 S.Ct. 1562, 1567, 123 L.Ed.2d 229 (1993)), the legislative history in this case yielded several friends and no one in the crowd was actively hostile. Compare Portillo, 988 F.2d at 29 (reversing Tax Court's judgment in government’s favor where underlying opinion held that assessment did not provide a rational foundation for government's position); Mearkle v. Commissioner, 838 F.2d 880, 883 (6th Cir.1988) (holding that " |
7,412,625 | 1,310,349 | 1995-06-20 | United States Court of Appeals for the Fifth Circuit | Nalle v. Commissioner | Nalle v. Commissioner, 55 F.3d 189 (1995) | 1988-02-09 | United States Court of Appeals for the Sixth Circuit | Mearkle v. Commissioner | Mearkle v. Commissioner, 838 F.2d 880 (1988) | 1310349_3 | the Commissioner could thwart the intent of Congress through the device of promulgating a proposed regulation which has no reasonable support in the unambiguous statute upon which it is said to be based, but instead, is manifestly in conflict with that statute | See Mearkle, 838 F.2d at 883 (rejecting position under which " |
3,768,791 | 1,310,349 | 1992-10-06 | United States District Court for the Southern District of New York | United States v. Davis | United States v. Davis, 803 F. Supp. 830 (1992) | 1988-02-09 | United States Court of Appeals for the Sixth Circuit | Mearkle v. Commissioner | Mearkle v. Commissioner, 838 F.2d 880 (1988) | 1310349_1 | [P]roposed regulations are not entitled to the same deference as are final regulations. In the instance of a proposed regulation, the promulgating agency has not had the benefit of administrative hearings or of comments from interested persons concerning the advisability of modifying the proposed regulation or adopting it as final. | Thus, analogously, even though MarAd was not bound by the price agreement until the Maritime Subsidy Board approved GD’s CDS application, the record was for support purposes in all respects complete, and the mere lack of formal Board approval did not in any way affect QSD’s duty to update its proposal support.
Besides the analogy to TINA, the only other sources that the parties point to as aids in determining CDS reporting requirements are two sets of proposed, but unenacted regulations. These unenacted regulations are over twenty years old, and have never, in any reported case, been relied upon by the Government or anyone else for that matter. Because of the failure of the Departments of Commerce and Transporta tion to formally adopt these regulations, we do not find the updating requirements set put in them to have-been mandatory on GD. In United States v. Helmsley, 941 F.2d 71 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992), the Government.prosecuted Leona Helmsley for, inter alia, tax evasion. Citing a proposed, but never enacted treasury regulation which stated that the real property depreciation rate for tax deduction purposes was 7% per year for the first 10 years and 6% for the next 5 years, Helmsley argued that she had actually overpaid her taxes because she depreciated her real property only 6.67% per year. Id. at 84-85. See id. at 88; see also Mearkle v. Commissioner of Internal Revenue, 838 F.2d 880, 883 (6th Cir.1988) (“[P]roposed regulations are not entitled to the same deference as are final regulations. |
624,356 | 11,233 | 1998-09-30 | United States District Court for the District of South Dakota | Calhoon v. Sell | Calhoon v. Sell, 71 F. Supp. 2d 990 (1998) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_0 | any Act of Congress or treaty | “And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void* * *.” The Secretary did not even attempt to describe the grant or conveyance on section lines. But if the Secretary did intend to make such a conveyance or contract, the same was null and void from the beginning. Federal jurisdiction exists not only in connection with the issuance of an allotment in the first instance but also in connection with claims that deal with improvident grants of rights-of-way in connection with allotted lands. Loring v. United States, 610 F.2d 649 (9th Cir.1979). The facts here show more than “improvident grants”. The Secretary attempted to give away Indian lands in clear violation of law and the rights of the Indians. This order does not impact the federal treasury or any essential operations of the federal government. It simply orders the cessation of the use of Indian land without just compensation and due process of law.
[¶ 14] Plaintiffs, by seeking a declaration that the entire road is a “public highway”, are attempting to exclude persons who are in whole or in part of Indian blood or descent who are entitled to the allotments. In hindsight, it may have been preferable for the court to have sua sponte added as parties defendant all Native Americans who hold allotments which plaintiffs and the United States seek to impact, the Tribe having alleged in its answer that such persons are indispensable parties. No party, however, moved to add such persons. This is a suit involving the interests and rights of Indians in their allotments. This suit involves the rights of persons of Indian blood or descent to allotments of land under “ |
624,356 | 11,233 | 1998-09-30 | United States District Court for the District of South Dakota | Calhoon v. Sell | Calhoon v. Sell, 71 F. Supp. 2d 990 (1998) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_0 | of any civil action involving the right of any person * * * to any allotment of land * * *. | This suit involves the rights of persons of Indian blood or descent to allotments of land under “any Act of Congress or treaty” and jurisdiction thus exists under 28 U.S.C. § 1353. This section is a recodification of the jurisdictional portion of 25 U.S.C. § 345 and it is the latter section upon which most courts have concentrated. Both sections repx-e-sent a limited consent by the United States to be sued. Scholder v. United States, 428 F.2d 1123 (9th Cir.1970), cert. den. 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246.
[¶ 15] 28 U.S.C. § 1353 is of greater scope than 25 U.S.C. § 345 because it grants original jxxrisdiction “ |
675,222 | 11,233 | 1985-03-12 | United States Court of Appeals for the Ninth Circuit | Christensen v. United States | Christensen v. United States, 755 F.2d 705 (1985) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_3 | every civil action commenced against the United States, | Standard of Review
In reviewing a grant of summary judgment, we decide whether there exists any material disputed fact and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984). The parties do not contest the fact that the appellants’ cause of action accrued long before six years prior to the commencement of this action. Therefore, the sole question is whether the district court applied the appropriate statute of limitations, a question of law. Aragon v. Federated Department Stores, 750 F.2d 1447, 1449 (9th Cir.1985); Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036, 1039 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). Decisions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
B. Merits
The appellants’ claims are founded in 25 U.S.C. § 345, which gives federal courts jurisdiction to determine whether an allottee has been deprived of rights acquired through an Indian allotment. Arenas v. United States, 322 U.S. 419, 432, 64 S.Ct. 1090, 1095, 88 L.Ed. 1363 (1944). The court’s power is not restricted to compelling the issuance of a patent, but extends to protect, preserve, or define an allotment once issued. Scholder v. United States, 428 F.2d 1123, 1126 (9th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970); United States v. Pierce, 235 F.2d 885, 888 (9th Cir.1956).
Section 345 serves as a limited waiver of the Government’s sovereign immunity. We have held that 28 U.S.C. § 2401(a), which provides a six-year statute of limitations to “ |
348,883 | 11,233 | 1985-07-31 | United States Court of Appeals for the Ninth Circuit | Big Spring v. United States | Big Spring v. United States, 767 F.2d 614 (1985) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_3 | every civil action commenced against the United States, | Christensen, 755 F.2d at 707 (suit for right of way over federal land to landlocked allotment); Loring v. United States, 610 F.2d 649, 650 (9th Cir.1979) (inverse condemnation of allotted lands); United States v. Pierce, 235 F.2d 885, 888-89 (9th Cir.1956) (suit to compel allotment of land and appurtenant water rights); accord Begay v. Albers, 721 F.2d 1274, 1277-78 (10th Cir.1983) (suit to cancel forged deeds conveying allottees’ allotments to non-Indians).
The United States relies principally on Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). Ute Citizens held that section 345 did not waive the United States’ immunity in a suit for mineral rights reserved for a tribe by the United States. Section 345 did not apply because the rights in question were appurtenant to tribal land, not to the plaintiffs’ allotments. Id. at 142-43, 92 S.Ct. at 1466-67. Ute Citizens is not on point because plaintiffs seek mineral rights appurtenant to their allotments. In the other cases cited by the United States, the courts similarly refused to apply section 345 because the claims did not concern plaintiffs’ individual allotments. See, e.g., Scholder, 428 F.2d at 1126 (suit challenging BIA management of tribal irrigation system). Plaintiffs’ claims in essence seek to compel issuance of the missing mineral rights appurtenant to their allotments, and section 345 applies in this case to waive the United States’ sovereign immunity.
B.
The United States argues that 28 U.S.C. § 2401(a) (1982), which provides a six-year statute of limitation for “ |
1,825,514 | 11,233 | 1988-11-29 | United States Court of Appeals for the Ninth Circuit | Pinkham v. Lewiston Orchards Irrigation District | Pinkham v. Lewiston Orchards Irrigation District, 862 F.2d 184 (1988) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_4 | gave rise to rights appurtenant to the allotted lands, | United States v. Mottaz, 476 U.S. 834, 845, 106 S.Ct. 2224, 2231, 90 L.Ed.2d 841 (1986) (quoting Scholder v. United States, 428 F.2d 1123, 1129 (9th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970)); see also Christensen v. United States, 755 F.2d 705, 707 (9th Cir.1985), cert. denied, 476 U.S. 1181, 106 S.Ct. 2914, 91 L.Ed.2d 543 (1986). The issue before us is thus whether the plaintiffs’ allegations, which essentially amount to a tort, involve the interests and rights of the plaintiffs in their allotment after they acquired it, thereby giving rise to subject-matter jurisdiction under section 345. Although plaintiffs draw our attention to various cases in which jurisdiction was recognized over matters affecting Indian rights in an allotment, none involved tort actions in federal court for damages to allotted land caused by a defendant’s alleged negligent conduct.
Plaintiffs rely heavily on Coring v. United States, 610 F.2d 649 (9th Cir.1979), in which an Indian community brought suit against the United States and a city, claiming, inter alia, that a right-of-way over their land was obtained fraudulently. The district court dismissed the action for want of subject-matter jurisdiction. We affirmed the dismissal of the United States because the claim was barred by the statute of limitations. Id. at 650. As to the city, we reversed, holding that federal jurisdiction existed under 25 U.S.C. § 345 and 28 U.S.C. § 1353. Id. at 651. We reasoned that section 345 was not limited to actions seeking to compel the issuance of an allotment in the first instance, but also served to protect the interests and rights of an Indian in his allotment after he acquired it. Id. at 650.
In contrast to plaintiffs’ claim here, however, the claim in Loring did not sound in tort. Because such provisions “ |
1,825,514 | 11,233 | 1988-11-29 | United States Court of Appeals for the Ninth Circuit | Pinkham v. Lewiston Orchards Irrigation District | Pinkham v. Lewiston Orchards Irrigation District, 862 F.2d 184 (1988) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_6 | to entertain an action brought to preserve these rights. | Because such provisions “gave rise to rights appurtenant to the allotted lands,” federal jurisdiction under sections 345 and 1353 existed “ |
3,620,154 | 11,233 | 1983-12-15 | United States District Court for the District of Nevada | Christensen v. United States | Christensen v. United States, 575 F. Supp. 735 (1983) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_1 | who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress | ORDER
EDWARD C. REED, Jr., District Judge.
Defendants have moved pursuant to Fed. R.Civ.P. 12(c) for judgment on the pleadings denying Plaintiffs all the relief they have sought against Defendants in this case.
Plaintiffs, according to the complaint, are American Indians and the surviving heirs of Katie Martinez, deceased. Each of the plaintiffs claims an undivided interest in an Indian allotment, consisting of a 40-acre tract in Douglas County, Nevada, conveyed to Mrs. Martinez by trust patent issued by the United States in 1933. At that time, and continuing to the present, the allotment parcel has been landlocked in that it is completely surrounded by other tracts of public lands (national forest) and private lands. The only feasible access to the Martinez allotment from a public road allegedly is across land patented in fee in 1876 to a predecessor of present owner Eugene Scossa.
The Martinezes were permitted to use a right-of-way across the Scossa land until the death of Katie Martinez’ husband in 1951. (Katie Martinez herself had died in 1948). Permission then was revoked.
The complaint invokes the jurisdiction of the Court pursuant to 25 U.S.C. § 345, which authorizes Indians “ |
3,657,050 | 11,233 | 1984-04-23 | United States District Court for the District of Nevada | Christensen v. United States | Christensen v. United States, 583 F. Supp. 1539 (1984) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_3 | ... every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. |
The defendants have moved for summary judgment on the grounds that the action is barred by the applicable statute of limitations and that the complaint fails to state a claim upon which relief can be granted against them.
In 1933, the United States granted a trust allotment to Katie Martinez, a Wash oe Indian. The granting document made no mention of rights-of-way or other access to the allotment. The most feasible access from the nearest public road requires the crossing of land that has been privately owned since 1867. The owners permitted Katie Martinez and her husband to cross their land until their deaths, which occurred in 1948 and 1951, respectively. Then the path they had been using was fenced off.
The plaintiffs herein, who are heirs of Katie Martinez, have made ongoing requests to. the Bureau of Indian Affairs to provide access to the allotment. Since 1972 those requests have been made by attorneys for the plaintiffs. No access has beén provided.
The complaint alleges that the United States has breached the duty imposed on it by 25 U.S.C. § 348 to hold the allotment in trust for the sole use and benefit of the Indian allottee. That duty encompasses the obligation to furnish unrestricted access, according to the plaintiffs. The prayer for relief asks for a declaratory judgment that the United States is obligated to provide unrestricted access, and for a writ in the nature of mandamus requiring the Secretary of Interior to take immediate action to implement the same. Also, they point out that 28 U.S.C. § 2401(a) states that “ |
122,905 | 11,233 | 1988-05-03 | United States District Court for the District of Montana | Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Indian Reservation v. United States | Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Indian Reservation v. United States, 686 F. Supp. 831 (1988) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_3 | every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. | The essence of the Tribes’ position lies in their assertion that where there exists an Indian tribe that represents the interests of the aboriginal tribe who owned the lands, the taking of which by the United States necessitated the entry of a judgment for monetary compensation by the Indian Claims Commission, only those tribes and their members are constitutionally or legally entitled to share in an award of the Indian Claims Commission providing compensation for the wrong done to the aboriginal tribe. The Tribes’ submit any act of Congress implemented to effectuate the distribution of a fund created to satisfy a judgment of the Indian Claims Commission must comport with the strictures of the fifth amendment to the United States Constitution. In that regard, the Tribes submit the fifth amendment is violated if the Distribution Act cannot be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians. Specifically, the Tribes assert that a judgment fund distribution law violates the fifth amendment when it authorizes distribution of the fund to persons whose lineal ancestors had severed their relations with the Tribes or to persons who themselves are not members of, or closely affiliated with, the Tribes holding a beneficial interest in the judgment fund. With respect to the judgment fund at issue in this action, the Tribes contend that the “lineal descendants” certified by the defendants as entitled to share in the distribution of the judgment fund are (1) persons who do not have a Sisseton and Wahpeton Sioux lineal ancestor; (2) persons who have a Sisseton and Wahpeton Sioux lineal ancestor who severed relations with the Sisseton and Wahpeton Sioux Tribes; and (3) persons who are not members of, and have no close affiliation with, any of the plaintiff Tribes.
Having considered the arguments advanced by the parties in light of the record, the court is convinced the plaintiff Tribes’ claims are time barred.
II. Section 2401(a) provides, in pertinent part, that “ |
10,536,081 | 11,233 | 1988-06-14 | United States Court of Appeals for the Ninth Circuit | Morongo Band of Mission Indians v. California State Board of Equalization | Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376 (1988) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_0 | jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any Act of Congress or treaty. | Similarly, 28 U.S.C. § 1353 confers the district courts with “ |
1,643,475 | 11,233 | 1987-01-15 | United States Court of Appeals for the Eighth Circuit | Nichols v. Rysavy | Nichols v. Rysavy, 809 F.2d 1317 (1987) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_0 | involving the right of any person, in whole or in part of Indian blood or descent, to any allotment under any law or treaty, | The government sold the land to the United States Forest Service, allegedly without her consent, pursuant to 25 U.S.C. § 483, which allowed the Secretary of the Interior “upon application of the Indian owners * * * to approve conveyances, with respect to lands or interests in lands held by individual Indians * * She sued for the fair market value of the land. The district court granted the government’s motion for summary judgment based on 28 U.S.C. § 2401(a), the general six-year statute of limitations governing actions against the United States. On appeal, this court held in Mottaz v. United States, 753 F.2d 71 (8th Cir.1985), that no cause of action could accrue on a void transaction, and we remanded the case to the district court to determine whether the sale was in fact void, thus barring the United States’ statute of limitations defense.
The Supreme Court granted certiorari and reversed on other grounds. The Court expressly declined to decide whether the six-year statute of limitations in 28 U.S.C. § 2401(a) applied to actions brought under section 345 of the Dawes Act, instead holding that the suit was within the scope of the Quiet Title Act, which applies where the United States claims an interest in the land. Thus the applicable statute of limitations was subsection (f) of the Quiet Title Act, 28 U.S.C. § 2409a. The Supreme Court nonetheless examined section 345 and stated:
Section 345 grants federal district courts jurisdiction over two types of cases: (i) proceedings “ |
1,643,475 | 11,233 | 1987-01-15 | United States Court of Appeals for the Eighth Circuit | Nichols v. Rysavy | Nichols v. Rysavy, 809 F.2d 1317 (1987) | 1979-12-17 | United States Court of Appeals for the Ninth Circuit | Loring v. United States | Loring v. United States, 610 F.2d 649 (1979) | 11233_5 | ‘the interests and rights of the Indian in his allotment or patent after he has acquired it’ | Section 345 thus contemplates two types of suits involving allotments: suits seeking the issuance of an allotment * * * and suits involving “ |